WASHINGTON, D.C. -- Many of you have written or commented on our discussion here last month about the First Things controversy over the problem of judicial oligarchy. This is a solid indication to us that sentiment at the grassroots is deep and widespread. The controversy continues to echo inside the Beltway. One well-placed source tells Capital Ideas that the First Things controversy has even been a topic of conversation among the Supreme Court Justices themselves, with one Justice supposedly phoning some of the leading combatants to discuss the matter. Another source reports that Senate Republicans devoted no small amount of time discussing the issue at a recent retreat. At the dinner to honor Ward Connerly two weeks ago, Speaker Newt Gingrich remarked that Rep. Henry Hyde, chairman of the House Judiciary Committee, would be holding hearings and designing some kind of project to rein in runaway federal judges, although this seemed like another of the Speaker's inspired improvisations.

We're continuing to give this issue a lot of thought at our office, and those of you in the San Francisco Bay Area might wish to mark March 18 on your calendar, when we will devote our monthly Capital Ideas luncheon to a discussion of this issue. Meanwhile, interested readers would be well advised to pick up Justice Antonin Scalia's oblique perspective on this issue in his recently published book A Matter of Interpretation: Federal Courts and the Law (Princeton University Press). This slender volume consists of a lecture Justice Scalia gave at Princeton, along with responses from several leading legal scholars including Lawrence Tribe, Ronald Dworkin, and Mary Ann Glendon.

More interesting than the contrast between the always lucid Scalia and the near-incoherent sophistries of Tribe and Dworkin is the unusual twist Scalia presents on the issue of judicial tyranny (which is why I used the adjective "oblique" to describe the book in the previous paragraph). In challenging the modern idea that we need the "flexibility" of a "living Constitution" to adapt to changing circumstances, Scalia notes that the courts have actually reduced the flexibility of government by placing constraints on what other branches of government may do.

But even more challenging is Scalia's intuition that the judicial usurpation of Constitutional authority will end up backfiring on the activists. Activists suppose that they are standing up to the "tyranny of the majority" (which is why critics of judicial activism see this as the "tyranny of the powerful few"). In the fullness of time, Justice Scalia worries, the majority will exert itself, and judges, having widened the latitude of their power, will be the willing instrument for a genuine tyranny of the majority, instead of the principled bulwark against it in the limited areas limned in the Bill of Rights.

This story has a long way to run, but Justice Scalia's book is helpful if only for the cognitive dissonance it promises to generate.

-By Steven Hayward