The role of judges

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I’ve repeatedly bemoaned the tendency for some judges to ignore their duty to rule on the laws and the constitution passed by the people’s representatives and not to act as a superlegislature, imposing their own beliefs in an autocratic fashion on the people.

Last week, in an address to a conference on the judiciary at Georgetown University, Attorney General Alberto Gonzales rebuked judges who somehow believe that their black robes endow them with the wisdom, insight and intelligence on how to fight a war.

He said the Constitution makes the president commander in chief and the Supreme Court has long recognized the president’s pre-eminent role in foreign affairs. “The Constitution, by contrast, provides the courts with relatively few tools to superintend military and foreign policy decisions, especially during wartime,” the attorney general told a conference on the judiciary at Georgetown University Law Center.

“Judges must resist the temptation to supplement those tools based on their own personal views about the wisdom of the policies under review,” Gonzales said.

And he said the independence of federal judges, who are appointed for life, “has never meant, and should never mean, that judges or their decisions should be immune” from public criticism.

“Respectfully, when courts issue decisions that overturn long-standing traditions or policies without proper support in text or precedent, they cannot — and should not — be shielded from criticism,” Gonzales said. “A proper sense of judicial humility requires judges to keep in mind the institutional limitations of the judiciary and the duties expressly assigned by the Constitution to the more politically accountable branches.”

If there’s another serious terrorist attack on the United States, then the first response isn’t going to be to blame the judges who ruled that the government can’t surveil the calls of known terrorists in to and out of this country. No, the blame will be cast on the president, and to a lesser extent the legislature, for failing to protect the nation. While presidents, senators and representatives may be thrown out of office, it’s unlikely that there will be the political will to impeach judges who issue rulings so laughable [PDF document] that legal experts on both sides of the issue decry it.

At the same time, judges complain that people are angry about their decisions, ignoring the fact that too many rulings drip with contempt for the wisdom, values and beliefs of the American people. In a piece in last week’s Wall Street Journal, retired Justice Sandra Day O’Connor complained that the constant criticism of judges may have the effect of intimidating judges.

Not to be completely outdone, Congress also has engaged in recent efforts to police the judiciary. Seeking to constrain the legal sources that are available to judges, some members of Congress have advocated measures that would forbid judges from citing foreign law when they are interpreting the Constitution. In addition, bills have been introduced in both houses of Congress supporting the creation of an inspector general to investigate and monitor the federal bench. Finally, the House of Representatives passed legislation over the summer that would prohibit the Supreme Court from considering whether the Pledge of Allegiance’s inclusion of the words “under God” violates the First Amendment.

I don’t think there would be nearly as much anger directed at the judiciary in general and the Supreme Court specifically, if they didn’t too often take policy decisions out of the hands of the people and basically declare certain debates off limits to the electorate (see Roe v. Wade and the Supreme Court’s recent ruling against the death penalty for juveniles which manufactured a phony consensus out of thin air).

While we should shun (and prosecute where appropriate) efforts to intimidate judges through threats of violence, the judiciary should not be immune from intimidation by the other two branches of government. While the legislature and executive often worry about how the judiciary will react to legislation passed, the judiciary never seems to be concerned about how the executive or legislature will react to their pronouncements. The criticism is something they should get used to if they continue in their current course.

As to O’Connor’s last point, it’s a sign of judicial arrogance that she refuses to acknowledge that the legislature has the power to limit the court’s jurisdiction. Because a power is seldom exercised, doesn’t mean it doesn’t exist.

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