Saturday, July 29, 2006

The War on Justice

There is a very strange but very real battle going on over the American judicial system. This is far less about who becomes a judge and far more about what judges can do. Ladies and Gentlemen, if we want to keep the third branch of government we are going to have to get into the fight.
Crusades against independent courts are sprouting like mushrooms. It's time for judges and everyone else who cares about judicial independence to stop hoping that dignified silence will win the day. Enemies of impartial justice are energized and organized. But judges have the tools they need to fight back and win—if they're willing to roll up their robes and explain in plain language why interest groups must not take America's system of fair and impartial courts hostage.
I am a fan of the American legal system. I have my critiques, but they can be worked out within this system. If judges have to turn alleged murderers loose because the police or prosectuion can't get their act together, I blame the prosecution and the police for not doing their damn jobs. If judges declare legislation unconstitutional, I blame the legislators for not doing their damn jobs. If judges declare executive decision unconsitutional, I blame the executive for not doing their damn jobs.

The judicial system is supposed to be a wall, not a popularity contest. They have to make unpopular decisions to make sure the police, the legislatures and the executives stay within the bounds of the law. This is why the Judicial branch was created - to strike down actions of the other parts of government when those actions overreach. We're going to have to deal with decisions that they make which are not popular and don't appear to make sense, but the advantage of having them around is far greater than the disadvantage we will be at when we tie their hands.


dadvocate said...

Good post by you and Slate.

The courts probably make the right decision 99% of the time which is much better than the legislatures and executives we have.

There are bad decisions like Kelo but these can be rectified, possibly. Here's a case near Cincinnati where the owners appears to have won an eminent domain case.

In some areas courts seem to make interpretations of the Constitution that are far beyond what was intended.

-Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

-the right of the people to keep and bear arms, shall not be infringed.

-The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,

These areas attract a lot of attention positive and negative depending on you point of view.

But, as you and Slate at least imply, the executive and legislative offices are much greater threats to the populace. Kelo wouldn't have been in court if the executive and legislative branchs hadn't have been so greedy.

RightOnPeachtree said...

You hold the courts in much higher esteem than I do. The judicial branch, like the executive and the legislative branches, make lots and lots of mistakes (IMO). They probably don't perform as badly as the executive and legislative branches, though. This is because they are specifically trained in their area of expertise -- whereas there is no training/educational equivalent for lawmakers or the prez'nit. Also, the current officeholders in the executive and legislative branches are essentially moronic and useless. Still, though, judges do make their share of bone-headed decisions. They are just people, after all.

And don't think for a second that today's push by some conservatives is a new development in terms of interest groups exerting influence on the bench. This has always been the case and will always be the case. I would argue that liberal interests have had too much influence on the courts in the past. Conservatives are now trying to change that. Will they overshoot? Probably, but we can't just ignore it when judges overstep their bounds and start making laws from the bench (i.e., gay marriage, abortion, etc.). Legislators make the laws. Courts are supposed to INTERPRET the law. They can strike down laws, but it's not their job to write/rewrite laws. That's why I applaud John Roberts in taking a "narrow" view on court cases. He's trying to leave the lawmaking up to the lawmakers.

The judges have a role to do. As long they perform that role and do it according to the law (and not outside pressure or personal opinion), I'll be satisfied.

Buzzzbee said...

"They can strike down laws, but it's not their job to write/rewrite laws."

Sorry rightonpeachtree, but that's just semantics. When you strike down a law, you are by the conservative definition passing a law. If you strike down a law banning gay marriage because it's unconstitutional, you are making gay marriage legal.

By your own admission, that is their job.

RightOnPeachtree said...

"When you strike down a law, you are by the conservative definition passing a law."

Good point and I understand what you're saying. However, I think that striking down a law against something doesn't explicitly make that act legal. It only reverts the situation back to the status quo, whereunder the act (gay marriage or whatever) is not addressed one way or the other by law and can be attempted. Then it may or may not be challenged in court based on any number of possible reasons. However, it is not explicitly legal because there is not a law granting gay couples the right to marry.

In this case, it would be up to the legislature to either:

(a) leave the situation in legal limbo by not having a law addressing it either way, or
(b) passing a law that either allows gay marriage or outlaws gay marriage

Let me try an analogy: It's like walking down a hallway with rooms on either side. Room 1 represents one position and Room 2 represents another position. Does expulsion from Room 1 automatically put you in Room 2? No. It puts you back in the hallway where no position is taken.

So does the court have in impact on the legal environment by upholding or striking down laws? Yes, of course. Do they write or create laws on topics not previously covered by law? No.

Of course, I'm not a lawyer, but those are my thoughts on the subject.

Patrick Armstrong said...

That is a very good analogy.

It is also very consistent with the way I envision our Judicial Branch of government.

I tend to agree with DADvocate, that the courts probably get the decision right 99% of the time, but they only get press for the bad decisions.

Thing is, I just don't see where the Judicial Branch has been able to legislate from the bench. Even if they declare 'things ought to be done this way' they are powerless to enforce their decision. If the Judicial Branch is able to legislate, that is simply another example of the legislature and the executive not doing their damn jobs.

Buzzzbee said...

I don't quite follow. I mean, if it's in limbo, what happens when, for example, a person wants to marry someone of the same sex? Should they take their case to Congress? “Yeah, I know you guys said it was illegal, but the courts struck down your law. So, can you make another one?” What if they pass the same law again? They thought it was good legislation when they passed it the first time. It would then get struck down and goes back to limbo again and the issue would never be resolved? What if, as it often goes, Congress doesn’t act at all? The issue again doesn’t get resolved.

Or, I suppose the person could go to the courts to get current laws, relative to the case interpreted. If the courts found banning gay marriage to be unconstitutional, how could they rule in favor of it?

There is still only legal and illegal. As long as there are people on one or both sides of the issue limbo doesn't work. They'll want an answer.

Patrick Armstrong said...

Much of our legal code actually is in limbo currently. Certain laws passed by the legislature are only enacted when enforced by the executive.

Por ejemplo:

The legislature has passed a law that states that these homosexuals cannot get married.

The Supreme Court strikes this law down as Unconstitutional for whatever reason. This does not make homosexual marriage legal.

Then a homosexual couple wants to get married. Because marriage is regulated by the state through marriage liscences, they apply.

They are unable to recieve their liscence, because even though the illegality of their union was not codified, neither was the legality of their union.

Limbo = status quo.

It would be like me applying for a student visa to attend the University of the Galactic Empire on the Planet Coruscant. Though it is not implicitly illegal for me to get one, there are no legal channels to pursue such documentation.

The institution of homosexual marriage, like the Galactic Empire, remains a legal non-entity until it is either discovered or created by the state.

Homosexual marriage can only be created by the legislature. (At which point the court could declare those laws unconsitutional, and send us back to the status quo.)

Buzzzbee said...

This discussion took me back to Article 3 of the Constitution. I was quickly reminded of what one of my poly sci professors said in regards to Judicial Powers. He told us that the founding fathers basically just said "there shall be a supreme court and left it to be figured it out later". He was exaggerating of course, but when you look at the constitution and how little they explained the expected role of the Judicial Branch, you get what he's talking about.

That being said, I disagree with hallway/limbo theory. Let me explain why. The hierarchy of laws in the land are as follows:
1:The U.S. Constitution
2:Federal Law
3:State Constitution
4:State Law
5:Local Ordinance

My interpretation is that this means that not only is the Constitution law, it takes precedence over Federal Law passed by the legislative. The Judicial Branch, I think we can all also agree, is charged with enforcing the law. By using this limbo scenario, you're limiting their ability to do their most basic and important function. More to the point, sometimes the status quo is illegal. I'll give an example.

To get off the Gay Marriage topic, let's go back to the Civil Rights era. At the time, there was a Constitutional Amendment outlining the rights of a U.S. Citizen. This "law" had been around since 1868. At the time, the status quo said that segregation was ok. The Supreme Court decided that Segregation was actually illegal based on the standards outlined in the 14th amendment.

So, if I'm to understand your point, the Supreme should have been able to strike down laws pertaining to segregation, but not end the practice, even though they found the practice to be illegal? Instead, it should have gone back to the status quo that said segregation was ok? That doesn’t make sense to me.

By the way, sorry for taking so long to catch on. I couldn’t seem to get the technically limbo, illegal in practice concept. Sometimes my train of thought can take a little while to get to the station.