In addition to the contradiction inherent in the phrase, a further contradiction emerges. What is the purpose of “yet another” study on government by judiciary in an issue that is supposed to be taking a “critical approach” to justice? A critical approach is not necessarily a renewed one, just as a new approach can be brought to bear on a “classic” object, invested with the disconcerting authority attached to that adjective. If there is one expression whose critical profile, beyond the aesthetics of the slogan, has given it a surprisingly long lifespan, it is “government by judiciary.” However, through a series of sometimes relevant but often inappropriate uses, its profile seems to have been burnished. From a doctrinal expression born of the observation of a system utterly foreign to ours, “government by judiciary” has become the cherished slogan of skeptics and other “anti-everything” people, as well as the author of the present article, who regrets having once written a “plea for government by judiciary.” It often takes many years to understand the objects of one’s study. Science must not be sacrificed on the altar of polemics, and the comparatist view, however indispensable it may be, must remain humble: not everything is comparable, never mind transposable.
To put it another way, the criticism of government by judiciary is difficult to grasp for those whose main object of study is the US Supreme Court. Without giving in to the temptation to venerate one’s object of study, it is often difficult as a researcher to separate one’s thinking from what drives one’s day-to-day work…