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Third, say what you want about disorderly, often theatrical legislative debates, but they can raise almost any issue imaginable and these debates are generally open to public scrutiny and thus serve a didactic purpose. The current brouhaha over immigration among GOP hopefuls perfectly illustrates this point — both Cruz and Rubio relish pointing to each other's legislative record on amnesty. Matters are entirely different with far more secretive judicial deliberations. Few ordinary citizens and non-experts can follow judicial debates, let alone grasp terminology like "strict scrutiny.

Antonin Scalia and the Battle against Kritarchy

Lastly, kritarchy is a risky political strategy: winning coalitions can easily be undone by the uncontrollable vagaries of life. Yes, you may appoint a strict law-and-order justice, but who would have predicted the path taken by Earl Warren , a one-time tough prosecutor who became famous as the chief justice adamantly soft on crime? Then there's the uncertainties of the specific lower courts that decide a case — identical cases are often decided differently by different courts, a situation promoting " judge shopping.

This is hardly an appetizing outcome.

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How can kritarchy be avoided? The easy answer is to insist that all judicial appointees swear an oath that they will not invent laws of out of thin air or rely on crackpot social science theories, a judicial philosophy called strict constructivism.

The Ancaps Fling Back

It is an admirable approach in the abstract, but problems often emerge when scrutinizing century-old laws. More importantly, how can sitting judges be held accountable if they reject this philosophy once appointed? Fortunately, a realistic solution exists that begins by acknowledging that the kritarchy can flourish only where the elected branches of government abdicate their governance responsibilities.

Kritarchy exists in a power void. Consider the troubled, often confused history of racial preferences in higher education. Title VI, section of the Civil Rights Act is crystal-clear: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.


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In multiple instances, the judges, often with the slimiest majorities, creatively overruled "no racial discrimination" by concocting principles — for example, American society's "compelling" need for racial diversity. In fact, even a half-century beyond the law, the Supreme Court is still trying to navigate all the exceptions and the legal underbrush.

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What if the U. Department of Justice had from the get-go instead issued arrest warrants for university administrators who violated Title VI, section ?

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That is, arrest them, put them in orange jumpsuits, and haul them into court, and let a jury decide that the law really said "no racial discrimination except where such discrimination promotes diversity. Racial preferences is only one of many examples of today's kritarchy. The larger point is how judges regularly fill a power vacuum when Congress and the president fail to exercise their responsibilities. It's quick and easy.


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kritarchy - Wiktionary

Examples The Vinson Court was opposed to segregation and wanted to rule against it in but would not because the justices understood that it would usher in kritarchy. Related Words Log in or sign up to add your own related words. Wordmap beta Word visualization. Comments Log in or sign up to get involved in the conversation.