Constitutional law in the United States is, for most practical
purposes, the product of ‘judicial review’, the power of
judges to disallow policy choices made by other officials or
institutions of government, ostensibly because those choices are
prohibited by the Constitution. This extraordinary and unprecedented
power, America's dubious contribution to the science of
government, has made American judges the most powerful in the world,
not only legislators but super-legislators, legislators with virtually
the last word. Because lawmaking power divorced from popular will is
tyranny, most states have attempted to reconcile the lawmaking power of
judges with representative self-government by subjecting all or some
judges to some form of popular election. In all but four such states,
judges, encouraged and supported by their fellow lawyers in the
organized bar—would-be judges and beneficiaries of judicial
power—have responded by adopting codes of judicial ethics that
limit what candidates for election to judicial office are permitted to
say. The effect is to undermine elections as a control on judicial
power by limiting criticism of judicial activism, the misuse of
judicial power.