America is not a democracy, but an oligarchy of nine unelected old men (and women) dressed in robes. Since the 1973 abortion ruling (Roe v Wade) the justices of the Supreme Court  have forced an agenda of social and moral engineering upon the fifty states of the American Union. Through broadly interpreting or re-interpreting laws and constitutional amendments the judicial branch of the government has usurped the powers of the legislative branch. The same phenomenon has infected Europe. While the judiciary may sometimes – such as earlier this week in Germany  – protect citizens against the usurpation of the legislative powers by the executive branch of government or by unaccountable and unelected national or supranational bureaucracies, on the whole the judges’ eagerness for political power threatens our freedoms. In democracies citizens can vote power-abusing politicians out of office, but not the justices of their supreme courts who have been appointed for life and can only be replaced when they die or voluntarily resign.

As a consequence, the rare occasions on which a democratically elected president can appoint a new justice in the Supreme Court have become decisive factors in the way many Americans vote during presidential elections. Pat Buchanan, a fierce adversary of the war in Iraq, endorsed George W. Bush  in 2004 because, as he wrote: “Should Kerry win, the courts will remain a battering ram of social revolution and the conservative drive in Congress to restrict the jurisdiction of all federal courts, including the Supreme Court, will die an early death.”

After the retirement of justice Sandra Day O’Connor, early this month, President Bush’s choice of replacement will be crucial for the future development of American society. If Bush appoints someone who favours a restrictive interpretation of the powers of the judiciary, then American democracy can be saved. If Bush has the opportunity to appoint two or three justices (which is not unrealistic, as some of the remaining justices are in poor health), he may become the president who leaves the most important mark on America in half a century.

Last year I was the only journalist in Belgium and the Netherlands to predict that George W. Bush was going to win the elections because he appealed to the voters on moral values. This assertion seemed so preposterous to European ears that major newspapers in Flanders and the Netherlands, including the leading Dutch paper NRC-Handelsblad for which I have occasionally written since 1985, turned down my op-ed piece “God will win the American elections,” predicting a Bush victory. In the end, the article ran in the small religious Dutch paper Reformatorisch Dagblad.

Ironically, if Bush succeeds in appointing two (or more) additional conservatives among the nine justices, thereby tipping the balance decisively in the direction of the legal restrictionists, moral values are less likely to play a major role in the 2008 presidential elections. This will enhance the chances of Rudolph Giuliani, who is not a social conservative, of winning the Republican nomination, but also the chances of a liberal Democratic nominee, such as Hillary Clinton, of winning the elections.

Last week, two American journalists, James Taranto and Rich Miniter, were in Brussels. We extensively discussed American politics and taped some of our conversations. James works for The Wall Street Journal in New York, where he edits OpinionJournal.com, while Rich is a former collaborator of The Wall Street Journal Europe in Brussels and is currently a free-lance author.

The power of the courts is undermining free society

Paul Belien: Americans are currently in debate about the Supreme Court. I would like to have your opinion on how the Supreme Court will develop. Will the Court become more conservative?

James Taranto: Sandra O’Connor is retiring. She has been on the Supreme Court since 1981. She was Ronald Reagan’s first appointee. She has been what we call a moderate.

PB: She has been a disappointment for many conservatives. Do you share this opinion?

JT: Yes, somewhat.

Rich Miniter: Didn’t she vote with [chief justice William] Rehnquist [who is a conservative] 84% of the time, though?

JT: I don’t remember the numbers. She has been very good on certain issues from the standpoint of conservative legal philosophy. She has been good on federalism: on limiting the power of the federal government vis-à-vis the states. She wrote a blistering dissent in the case of Kelo v New London, which was the eminent domain case. Eminent domain is the power of the state to appropriate private property for its own use without the owner’s consent. The Supreme Court decided that the government can also take property from citizens to give to other private interests, which was an outrageous decision. Eminent domain is permissible but it should only be for public use. O’Connor has certainly been good on some issues, but on other issues she does not seem to have a consistent legal philosophy. She seems to make her decisions on a political basis.

PB: She is known as a pragmatist.

JT: Well, she is known as a political judge, and that is a problem if you believe that a judge’s role is to interpret the law and not to make the law. For example, O’Connor joined a five justice majority in 1992 to uphold Roe v Wade, the abortion case, and basically the argument that she and two other justices made was: We have decided this case before and there has been a lot of political pressure about the case: if we overrule the precedent, we would be giving in to political pressure and that would damage the prestige of the Court. OK, but I wonder if whether the case was decided rightly in the first place does not make a difference? In any case, if the court overruled Roe v Wade it would not be making new policy, it would simply be leaving the case to the democratic process where it belongs since the constitution is silent on the subject of abortion.

In terms of what is going to happen on the Court, I think that most likely we will see President Bush appoint somebody who is more conservative [this interview was taped before Bush appointed John G. Roberts  – pb] because he is determined to leave his mark on the Court. I do not think the Democrats in Congress, who have only 45 seats out of a 100 in the Senate, are going to have the power to force too much of a compromise. Of course, they can filibuster, which is the procedure by which 41 senators can block a vote and delay confirmation, but they used that procedure in the last congres in 2003-2004 to block a lot of lower court nominees and they paid a political price for that. Hence, moderate Democrats struck a deal to avoid filibustering in the future, so I do not think that is going to happen. I think Bush will pick somebody conservative, there may be a lot of fury over it, but the nominee will get through and the court will move decidely to what you might call the “right” – although there is a problem with using these political labels for the judiciary.

PB: That is a very optimistic view. Do you share this, Rich?

RM: On balance I do. James is a better political judge of events like this than I am. I want to step back and make a bigger point. During the last thirty years in North America, both the United States and Canada, and in Western Europe we have seen power ebb away from elected bodies, parliaments, legislatures, congresses, whatever, to judges, and certainly you talk about this in your book, Paul.

PB: It is, indeed, the same in Belgium, where the courts actually decide whether a political party is allowed to function or not.

RM: That is right, the courts have become a profoundly I would say aristocratic, certainly anti-democratic force. If you look at the formation of the EU, for example, much of it has been done not through treaty, certainly not through referendum or votes in parliament, but by court order. The same is true in the US where vast amounts of policy relating to highly local matters like schools, housing, crime, is done by the courts. They essentially write laws on whatever basis suits them, often citing precedents from Europe, but even from Zimbabwe.

We have a major problem, because as courts make law without democratic legitimacy – and people increasingly see judges as the political actors that they are – the legitimacy of the entire political process comes into question. It also tends to promote extremes, as James often points out in his columns. When the Supreme Court got involved in the abortion debate in 1973 it stopped the democratic process. It is quite possible that a number of states, in the northeast and on the west coast, would have made abortion legal, but not as far-reaching as in Roe v Wade. The democratic process was not moving fast and consistently enough in the direction that the Supreme Court wanted. So it simply took this test case, argued by pro abortion lawyers for a hapless woman who called herself Jane Roe, to push an activist agenda.

If the Supreme Court had allowed the democratic process to work, different states would have come to different views and people for whom this is deeply important, and there are millions of Americans who feel deeply about abortion, would be able to choose under which set of laws they want to live. The same on other matters would be true in Europe, for example in the Netherlands with euthanasia where the courts have refused to prosecute, from the 1980s onwards, doctors who have intentionally killed their patients. Again, unelected people have been creating law. Ultimately we are not living in a free democratic society.

PB: Americans seem to care a lot about this. It is said that George Bush won the last elections on the issue of moral values. We also notice in the Democratic Party that Mrs. Clinton is lately becoming more of a moderate on issues like abortion.

JT: She is only making conservative noises. I do not think she can be categorised as a moderate.

PB: It is said she does this because she knows that otherwise she has no chance of winning the presidential elections. Even in the Democratic Party you see this move to a more conservative position on ethical issues.

JT: Abortion is a difficult issue. Very few people are on one extreme or the other. Even though those extremes are the official party positions, the candidates who win the presidential elections are always the ones who say things like Bill Clinton said in 1992 “I want abortion to be safe, legal and rare,” or, as George W. Bush said in 1999, “the country is not ready to outlaw abortion.” They are willing to see both sides, or at least they talk as if they are.

Most Americans are ambivalent about abortion. Hence, a moderate position is what appeals to them. Of course, it is easier for the Republicans to be moderate about abortion because Roe v Wade and subsequent decisions take off the table any restriction on abortion except for the most obvious ones. There is a case now making its way across the courts about partial birth abortions, a monstruous procedure that is done usually towards the end of pregnancy. The child is partially delivered and then his brains are sucked out while he is still in the birth canal. It would be murder if that was done two minutes later. In 2000 the Supreme Court overturned a state law banning partial birth abortions by a five to four ruling.  O’Connor was in the majority on that. Now there may be a chance to reconsider it.

Republicans favour as a practical matter these very sensible and moderate restrictions: a ban on partial birth abortions and the obligation of parental notification. These are the sort of thing that large majorities are in favour of. Republicans are moderate in practice and extreme only in theory. The Democrats are forced to take the extreme positions.

PB: To enter a more philosophical discussion, it strikes me that you, James, work for The Wall Street Journal and you, Rich, have worked for The Wall Street Journal. This paper is known in Europe as the capitalist flagship of the American media. In Europe, if you are a capitalist or in favour of free markets, you do not make this connection between moral values and the morality that also underpins economic freedom. Why is it so important for The Wall Street Journal to stress these moral values?

JT: You may be overestimating the degree to which we stress these moral values. I think we are very centrist. We are not in favour of a ban on abortion. We are very critical of Roe v Wade because we think these issues should be decided democratically. I do think, however, there is something to be said for the argument that a free society needs to have a moral underpinning. You need people who act according to some sort of moral rules, otherwise you risk having anarchy.

RM: I think tax cuts are the moral issue that concerns the Journal more than anything. I do not remember that the Journal has ever editorialised directly on abortion. I would be surprised if that were the case.

PB: You know that fifteen years ago I was fired from a Belgian Christian-Democratic newspaper because [on 5 April 1990] I had published an article on abortion in The Wall Street Journal.  An article that was considered to be too critical on abortion could not be published in a Christian Belgian newspaper, while it could in the Journal.

RM: That is right. You correctly predicted that the [Belgian] King would abdicate for a day in order to allow the [Belgian abortion] law to pass through.

JT: We have published signed opinion pieces, including some that I have written, on both sides of the abortion issue. I guess you can even include the ones that I have written as being on both sides. I wrote an essay on abortion in 1999 called “In praise of waffling.”  That kind of sums up the Journal’s editorial position. We have never said we think abortion should be legal or illegal under certain circumstances. I think we even endorsed a sort of moderate pro-choice position at some time in the past, but I could not cite you chapter and verse.

RM: I think the line the Journal has taken is that it should be up to the democratic process. You know there is a lot of sense in this. A free society allows individuals using the democratic process to come to their own decisions about these things. Why have an elite, with an ideological agenda, press its views through the authoritarian powers of the courts rather than trying to persuade the majority of the fellow citizens to agree with them? If their position is so wise they should be able to persuade a majority to go along with them and also be able to persuade that majority to stay with them as they go through the process of making this the law of the land.

JT: The pro-choice slogan is “who decides?” and their answer to that in 1973 was: seven old men in robes.

RM: Exactly.

PB: Let us now turn to politics. Some people hope that the next race for president will be between Hillary Clinton and Condoleezza Rice.

RM: I think the chances of that happening are approximately zero, but it is wonderful to think about.

PB: Who is going to win?

RM: I think Hillary Clinton could win no matter what Republican opponent she faces. Hillary is an enormous political machine in terms of fundraising. She will get the support of the media overwhelmingly, she has a tremendous direct mail list. Look, the Democratic Party as a party has almost ceased to exist. It is a handful of interest groups that essentially provides its machinery, moveon.org for example is one of those. The fight for the control of the Democratic Party is about controlling those machines. Hillary has her own machine and she may be able to control other machines, which means that she could almost certainly get the nomination. And, you know, Americans get tired of having one party in power for too long. It is quite possible that in 2008 they want someone else. Also, the Republican field, I think – and you, James, may have a different view – is pretty darn weak.

PB: And Jeb Bush?  He is sometimes mentioned as a possible Republican candidate.

RM: That will be the fight everyone wants. Bush versus Clinton, that is the headline, heavy weight box up that everybody wants. I do not think Jeb will run. It is too early and they do not want accusations of a family dynasty and that type of thing.

However, if it is 2007 and if the field does not get any better people may come hat in hand to Jeb Bush, the Governor of Florida, and say: please, run. If you look at the Republicans who are more or less announced, like Bill Frist,
the Senate majority leader – Frist is probably the most boring man in American politics after Bob Dole. Do you think he has a chance, James?

JT: No, Bill Frist, I think, is a weak candidate. However, I would quibble with your characterisation of the Republican field as weak. The field is still wide open. You cannot really pick out anyone yet who looks like an obvious choice for the nominee. There are a lot of candidates who are plausible, but it is too early to say.

RM: Who do you consider plausible?

JT: There are any number of these governors, it may be Mitt Romney, it may be Jeb Bush.

RM: Romney, the Governor of Massachusetts, a Mormon! I just do not think that Americans are ready to elect a Mormon.

JT: Oh, that is religious bigotry. But now on Condoleezza Rice, I would be willing to bet you, Paul, on twenty of those funny euro-dollars that you have here that she does not run. She has never held elected office. We have not had a presidential candidate who came from the cabinet since Herbert Hoover,  and remember how well that worked out. I do not think that is going to happen.

PB: Some people say that she does not stand a chance because she is black. Do you think that is still true?

JT: No, I think she is unlikely to run. If she were to run, she might stand a chance. If she does not stand a chance it is for other reasons than because she is black.

PB: Final question. We know that your favourite president is George Washington, at least in the book you have written.

JT: I edited a book called Presidential leadership: Rating the Best and the Worst in the White House, the new paperback edition of which will be out in September. It is based on a survey of an ideologically balanced group of scholars in politics, law and history.

PB: So most Americans consider their first president the best they have ever had. Has it been downhill from George Washington on?

JT: Washington finishes first in the scholarly polls. When you do public opinion polls you come up with very different results. People tend to admire very recent presidents. Washington kind of gets short shrift, Lincoln does all right but not as well as he should. You know, a lot of people say: “Clinton is the best president in American history.” People do not necessarily know that much about history.

PB: And who is your best president, Rich?

RM: I admire Ronald Reagan. I think Reagan and Thatcher had a moment in which the fate of their nations and in some way the fate of the world hung on their decisions. They took deeply unpopular decisions based on principle and pragmatic observation. And it worked out. Communism fell. They also saved their domestic economies which were supposed to be in permanent malaise – you remember all this left-wing talk about “late capitalism?” It was all going to spiral downward and this was the end. By embracing capitalism, Reagan and Thatcher saved Britain and America. The problem is that Germany, France and Belgium did not have the same revolution, even now. Angela Merkel is not promising all that much in that direction. But for Reagan, America would be like Western Europe. Thank God we are not. We are 44% of the world’s economy and 6% of its population. I think we owe some of that to Ronald Reagan.

PB: Where was Reagan in the survey in your book, James?

JT: In the first survey he finished 8th out of 39, and the new version of the survey will be out in September, so ask me then.