Once upon a time, the clashes between partisans in political discourse were restrained to the sphere of ideology, policy and vision.
Although the executive and legislative branches of government are elected officials, the judicial branch has a duty to stay out of partisan bickering and remain as independent as possible. One of the worst developments of our current political climate has been the growing partisanship that has engulfed the judiciary, with each party promising to select judges who'll make decisions to their benefit.
Because Supreme Court Justices are not directly elected, I believe it's fair to assume that the framers wished them to render decisions based on a fair and objective analysis of the law ' free from the concerns of public sentiment. This is important so that they can retain legitimacy and not have to worry about making decisions based on majority pressure.
The law is reason free from passion
once quipped Aristotle. And the judicial branch has a duty to remain true to the ideal of reason as best as possible. The political forces that control the two other branches of government are almost entirely fueled by the spoils of passion, and it is dangerous to interject emotion into an institution whose reasoning is based on logic.
Some people argue that the Supreme Court has gone beyond its assigned Constitutional authority, and those critics would be correct in that assessment. Article III (of the Constitution) does not burden the court with many duties and even restricts its appellate jurisdiction to Congressional oversight. Most of its authority has developed through case law, with Marbury v. Madison first establishing the premise of judicial review.
But if those who decry the expansion of the judicial power of the Supreme Court wish to remain logically coherent, then they must also decry the expansion of executive power by the president. Article II is also brief in describing duties, and every single president has transcended them.
If some wish to coin the phrase activist judges then I plan on countering with activist presidents.
Meanwhile, this partisan trend was magnified during the 2000 presidential election, in which the state of Florida decided the winner. Although there were statewide problems with the voting process, the Florida Supreme Court ruled that a recount could proceed in Miami-Dade County. Then Bush filed for certiorari to the Supreme Court to stop the recount. The rest is history.
I believe that this was one of the authentic instances of the court overstepping its bounds and settling political disputes, and it has contributed to a sharp decline in public respect for the institution of the judiciary (where was the activist judges rhetoric then?).
Nonetheless, justices are now expected to have a slate of opinions on how they would rule in certain cases beforehand, as evidenced by the confirmation hearings for Chief Justice John Roberts and Justice Samuel Alito.
In these instances, there is a misunderstanding as to how the process of interpreting the Constitution works. The fact of being nominated by President Bush should have no bearing on their future decisions, just as being nominated by President Clinton should be irrelevant as well. Objective analysis is done on a case-by-case basis ' not on what the president's political base thinks.
Recently, Supreme Court Justice Antonin Scalia warned Congress from interfering in the jurisprudence of the court. Rep. Tom Feeney, R-Fla., co-sponsored a resolution against the use of foreign case law in Supreme Court decisions. Although Scalia agreed with his premises, he disagreed with his actions.
It's none of your business he said in a speech on Capitol Hill. No one is more opposed to the use of foreign law than I am
but I'm darned if I think it's up to Congress to direct the court how to make its decisions.
The resolution is like telling us not to use certain principles of logic. Let us make our mistakes just as we let you make yours.
And although I hardly ever agree with Scalia, this would be the one exception where I do. It is dangerous to have Congress attempting to do the job of the Supreme Court, as it corrupts the objective analysis of law and severely undermines its legitimacy to the American public.
Above all, it must remain an independent institution, even if it does make a mistake every now and then.
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Thomas Hill
