Statutes that prohibit secret detention in black-hole prisons, surveillance of the American people without warrant and torture have all been ignored or redefined out of existence. The protections afforded by habeas corpus and the Geneva Conventions have been taken out the back and shot.

Like Louis XIV before him, Bush says, "L'Etat, c'est moi" (I am the state). He could declare anyone, anywhere, to be an illegal enemy combatant, even though they had committed no war crime or fought in any war. Outside the normal laws of war, or even the criminal law, they could be sent to a black-hole prison, where they could be tortured, and face trial on charges based on "coerced testimony" and hearsay. The accused could not even testify they had been tortured because to say so would violate a classified secret.

Bush said his prisoners were beyond the reach of the US court system. The Supreme Court said no, they are not. Bush thought he could suspend habeas corpus for his detainees. The Supreme Court said he was wrong about that. Bush thought he alone had power to create military commissions. The Supreme Court again said he was mistaken and that Congress had to legislate for such a process. The previous Australian government thought all of this skew-whiff lawyering was just fine. Obama has a monumental task ahead of him to repair the damage done to America's standing in the free world by lawyers who delivered incredibly poor advice. To name a few: David Addington, Vice-President Cheney's chief of staff and legal adviser and the main proponent of "L'Etat, c'est moi". John Yoo, who worked in the Justice Department and formulated the torture memos. William "Jim" Haines, the Pentagon's top lawyer who oversaw the enforcement of the interrogation techniques. Alberto Gonzales, former attorney-general and Bush crony from Texas, who obligingly implemented the Rovian plan to sack US attorneys who prosecuted Republican heavyweights. Harriet Miers, an obedient functionary and underqualified lawyer who Bush wanted to foist on the Supreme Court.

That's enough. The federal courts under Bush have been stacked with ideological clones, approved by an ultraconservative legal lobby called the Federalist Society. Just before the election The New York Times ran a story about how the federal appeal courts have been pushed to the right under the Bush Administration.

Of course, this is not "judicial activism". That term only applies if the judges push things to the left or, more probably, the centre. The Times recounted one story about a South Dakota law that forced doctors to tell women seeking abortions that the procedure would "terminate the life of a whole, separate, unique living human being". Those exact words had to be used to patients, as though something like that might never have occurred to them.

A federal trial judge ruled that the state could not enforce the law because to do so might violate doctors' first amendment rights. An appeals court upheld that decision. In June, the full US Court of Appeals for the Eighth Circuit swung into action. In a 7-4 decision it overturned the earlier findings and said the legislation should take effect immediately. The state can force doctors to say that life begins at conception because that is "objectively true". Six of the seven majority judges were appointed by Bush.

Conservative judges now make up 62 per cent of the federal bench. When Bush took office the figure was closer to 50 per cent. The trend is clear. Judges appointed by Republican administrations tend to favour corporations over regulators, state or local authorities over the rights of the citizen, and are more likely to throw out cases on technical grounds.

This is not to say there is always a unanimity of view among conservative jurists. For instance, there is a split on pressing issues such as whether mentally retarded people should be executed. You let a bunch of swivel-eyed lawyers loose in the paddock and they can wreak an awful lot of damage on the world. justinian@lawpress.com.au