Critocracy: or when judges rule

“It is emphatically the province and duty of the judicial department to say what the law is.”

So writes U.S. Supreme Court Justice John Marshall in Marbury v. Madison, forming the procrustean base of American jurisprudence. It’s hard to know whether Justice Marshall sought to create a critocracy—a system of government ruled by judges. Nonetheless, by linking the Court’s authority to the Supremacy Clause in the Constitution, he crafted a system in which the Court’s rulings became the final word on what laws or policies were permitted by the Constitution.

Is it possible Justice Marshall knew or foresaw his decision as ceding untrammeled power the Court? Other foundational justices soon noted that (as Justice Roger Taney wrote) if Court rulings “extend[] so far,” then Constitutional guarantees would be a “guarantee of anarchy, and not of order.”

The troubling question today is whether our sitting justices acknowledge a limit on their power. The troubling answer is that it seems they do not. Indeed, acting on the example of the Supreme Court, it appears that lower court judges, quasi-judicial bodies, and even nonjudicial agencies find no limit to their authority to issue rulings of undreamt breadth, based in ideological certainty.