Thursday, April 21, 2005

On Judicial Independence

The three branches of American government are the Executive, Legislative and Judicial branches. Each acts independently of the other. At least they are supposed to. They are interconnected and work together in a system of checks and balances.

In other words, each branch works as a balance and a check on the other 2 branches. For example, Congress makes laws, the President can veto the law a check or sign the legislation into law. The Courts can rule the new law constitutional or unconstitutional. If the law is found to be unconstitutional, well that is pretty much the only reason why a court can invalidate a law.

Congressmen serve two year terms and all can be voted out of office at the same time. Most all of them are actually retained but the ability to get rid of the bunch is the public check on the lower house. The Senators serve staggered six year terms, That checks the public power to overturn the entire government in one election. It is a check on public hysteria. Senators also are rarely defeated in re-election bids. Hence they can stay forever unless the voters tire of them. Presidents because in fact they have so much power invested in one person can only run for 2 terms of 4 years each. That is a check on their having an "imperial" presidency.

Courts have no inherent law making powers. A court can not pass legislation it can only pass on the clarity and constitutionality of that law. Occasionally however Courts have "clarified" things in such a way that the judiciary has been accused of advocating and legislating. (Usually by the side that loses. The winning side always seems to see the fact that the court's decision was obvious and the way the law was and should have been interpreted all along.) Courts can't even enforce their own decisions, they must depend on the executive branch for that service.

Judges serve for life. The only check on their tenure is if they really do something wrong (equal to a high crime or misdemeanors.) They stay for life or until they voluntarily leave office. This is fair because we expect, hope, and pray the court will act as a check on the majority opinion and defend minority opinions or at least give them due deference.

Violating against the will of the majority is no way to earn political job security. In fact it is a sure way to get tossed out of office. The constitutional framers realizing that the court was the only place a minority opinion could be successful sustained, insulated the court from danger by giving appointments for life. Interestingly certain congressmen, unhappy because they do not like the way the court has been ruling lately, have taken to bashing the court and threatening judges who rule against them with impeachment. In one case a US Senator even suggested violence!

That kind of attack, even if ridiculous, really jeopardizes the integrity and independence of the court. It gives the losing side the opinion that it lost its' case because the court was "afraid" to do what was right for fear of one of the other branches of our government.

Whether you believe the court is appropriately activist or reactionary it is important that the courts of the United States of America stay free from outside influences. The same administration, whose political party has been the number one attacker of the Supreme Court, recently used the court's very independence and it's willingness to stand up for even the most hated in our society to show off how fair America is in dealing with a recent Cuban attempt to open up our terrorist detention bases on Gideon.

You know it is hypocritical to try to have it both ways. You cannot have a judiciary that is gutsy and independent and seen world-wide as a beckon of independence and yet threaten it with all kinds of abomination if it rules against you. I figured that you would have learned that in elementary school.

An independent judiciary is one of the things that protects us from mass hysteria and the tyranny of the majority. It stops a single person from possessing so much power that he could destroy our culture as we know it. We may not always agree with the "People in Black robes", but we are lucky to have them doing their jobs and doing them apparently very well.

That's what I think. Why not drop me a line here or at www.colleluorilaw.com. Until, next time.
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