Just judges just judge

Aberdeen American News ^ | June 28, 2005 | Art Marmorstein

[jwalburg]

Our nation's founders were firmly convinced that an independent judiciary was essential to the free society they were hoping to create. In Federalist 78, for instance, Alexander Hamilton elaborated at length on Montesquieu's dictum, "There is no liberty, if the power of judging be not separated from the legislative and executive powers," explaining (among other things) why the Constitution's provision of life tenure for judges was particularly appropriate.

Hamilton maintained that, while in individual cases judges might act oppressively, the overall tendency of an independent judiciary would be to protect rather than subvert our freedoms, "The general liberty of the people can never be endangered from that quarter." But Hamilton added an important caveat. While liberty had nothing to fear from the judiciary alone, it "would have every thing to fear from its union with either of the other departments."

While Hamilton feared most executive or legislative usurpation of judicial power, the greatest current threat to the constitutional separation of powers comes from the judiciary itself.

Consider, for instance, this rather revealing comment from Massachusetts Chief Justice Margaret Marshall, this year's commencement speaker at Brandeis University, "Our courts function as a pressure valve to defuse political and social tension. As a nation, we have tacitly agreed that it is better to settle our large differences in the courtroom than in the street."

Notice that Marshall explicitly claims for the courts the function the Constitution claims for the people and their elected representatives. She insists that our "large differences" should be settled by the courts: and this, unfortunately, is more and more what's happening in America. Issues both small and large are settled through litigation rather than legislation, by judicial fiat rather than through democratic elections.

Marshall makes the astounding claim that letting the courts handle the "major" issues for us defuses political and social tensions. One would think she's not following current politics very closely - but she is obviously far from indifferent to political issues. Seeing the auditorium where she spoke decorated with blue and white balloons, Marshall "joked," that she liked the colors: no "red states" among them. Nice and non-partisan, yes? Well, perhaps in odd sense it is: for while justices like Marshall push a very specific political agenda, they want to avoid as much as possible an essential of partisan politics - public debate.

Note that Marshall claims Americans have given their "tacit" agreement to letting the courts settle our differences for us. We are to be tacit - silent - as the courts decide for us what public policy will be on abortion, education, immigration, criminal justice, religion, welfare ... on the whole range of issues the Constitution assumes will be settled through the democratic process.

Hamilton envisioned a judiciary "bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them." But justices like Marshall ignore both the law and precedent whenever they feel like it.

At the Supreme Court level too, the justifications for the court's decisions are often appallingly capricious. In Roper vs. Simmons (the decision in which the Supreme Court ruled unconstitutional the juvenile death penalty), Justice Anthony Kennedy cited such vague concepts as "international opinion" and an alleged "emerging national consensus" to justify a major reversal of one of his own previous decisions.

In her dissent, Justice Sandra Day O'Connor warned that in Roper the majority was substituting its own subjective judgment for that of "the Nation's democratically elected legislatures." Justice Antonin Scalia was similarly critical, "The Court says in so many words that what our people's laws say about the issue does not, in the last analysis, matter."

Judges who reinforce the rule of law and the principles of the Constitution are among the most important guarantors of a free society. But when judges themselves breach the constitutional separation of powers, those who love liberty have, as Hamilton told us, everything to fear.

[Torie]

Marshall was born, raised and educated in South Africa. Maybe that has something to do with her mindset.

[strategofr]

"Hamilton envisioned a judiciary "bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them.""

Hamilton could not have anticipated communism.

[jwalburg]

Tyranny yes. Communism no.