Liberals and judges everywhere will be rejoicing at the elimination of Marine Le Pen from the presidential race for the Élysée, the former because they will happily find any means of defeating the will of the people, the latter because it is a reaffirmation of the rule and power of judges. That the countries of the EU as well as the USA (and the anglosphere generally) are facing a major constitutional crisis on the role and rule of activist-judges is certain. But long before a resolution of any kind is possible anywhere, how long before ordinary people take what remains of the law into their own hands? At that point it is of course no longer law, but the mob. That said,  is the mob not being perpetually incited and enraged by the ex-cathedra rulings of judges and public officials who are protected by means of their social status from living with the consequences of their many decisions?

The primary example of activist-judges’ law was the Roe vs Wade ruling that made abortion legal in the USA. No law, as such, was passed to make this so. “Roe” was the legalistic pseudonym adopted by Norma McCorvey in her case against the State of Texas for not allowing her to have an abortion. She and her legal team successfully argued that her right to privacy was intruded upon by Texas’s prohibition of abortion, and the case went all the way up to the Supreme Court, which found in her favour. McCorvey was later quoted as saying  that taking the case was the biggest mistake of her life, because she now opposed abortion. A posthumous allegation was made that in her later years she had, against her will, been persuaded to back the anti-abortion cause. Either way, there is sufficient confusion around the rights and the wrongs of this issue to mystify anyone but a judge – a species that is often rendered immune to modesty and self-restraint by both the coarsening of ordinary feelings by years at the bar, followed then by the glorious allure of unrestrained power on the bench 

The most effective arguer of the judge-as-lawmaker was probably Ruth Bader Ginsburg, who essentially encoded the Supreme Court’s ruling on Roe vs Wade into the legal theology of the USA. She also pioneered the elevation of female sensibilities into a protected characteristic after a 14-year-old girl was made to strip to her underwear during a search for drugs by a female staff member. She said of her other judges that none of them had ever been a 14-year-old girl being stripped to her underwear, a useless generalisation that applies equally to most cases before judges – yet her ruling was then acclaimed as an exemplary piece of jurisprudence.