Something has been bothering me for some time about the direction politics are headed in my country. It started with all this talk of 'activist judges,' and continues through the Shiavo debacle. It has to do with the Judiciary becoming the favorite target of some of the more . . . fervent . . . members of Congress. I listened to an NPR interview recently with some senator who was talking about writing bans on judicial review into a host of laws and, even scarier, cutting funding for those courts who ruled in ways with which the political majority disagrees.
This is the path to disaster, if it actually happens. I'll be the first to admit that I disagree with a lot of the rulings of what I consider to be a relatively conservative Supreme Court. Nevertheless, what I think these people don't understand is that our government functions on one simple premise: You do what you're told, or as some call it, the Rule of Law. I'll be the first one to stand up and challenge an illegitimate law or ruling, but some Congresspersons are talking about entire branches disregarding the judiciary.
The judiciary is a stabilizer. It doesn't work perfectly all the time (Plessy, anyone?) but I think it has improved drastically in the last 100 years. The idea of our democracy, according to some theorists, is that the judiciary is there to reinforce valid democratic process. Where that process fails, that is, where there are flaws in the system, the judiciary is there to fix the effects of those flaws. One flaw may be the oppression of a minority by the majority (as pointed out in a good and enthusiastic post at C&F). In these cases, it is the role of the courts to ensure that the mob doesn't take control to the excessive detriment of the minority.
If Congress is allowed to control the courts through the funding stream, they will become simply another arm of Congress. Independence, to the degree it exists today, will be gone. I have no doubt that there will be some judges who will not buckle under the pressure, who will struggle to maintain that independence in the face of Congress, but there will also be many who will buckle and rule in cases the way Congress desires.
Then there's another problem: The courts only have power to the extent that people, including the rest of the government, actually obey. This is the rule of law component. The second Congress or the President chooses to ignore the courts, our system collapses. If it truly is a situation of a court seizing power or something (Rehnquist is hereby declared Supreme Ruler of the United States), the damage to our system can be justified. But I doubt you're going to find that, given that courts function only on what they say, not what they do. When the Court ruled that Nixon had to turn over evidence in the Watergate affair, he wisely chose not to simply ignore the court's ruling. Here was someone that recognized that to simply ignore the Court, which was a concern, was to invite disaster.
I think one of the main problems is that for some time there was a great deal of tension between Congress and the President. It makes it harder to get anything done, and it means that their focus was on each other. Now that they're both run by the same party, and their views seem to be more or less in alignment, they've started to look up. They see the courts as the only real limit on their power and now are looking at expanding that powerat the courts' expense. This should be opposed by all of us, liberal and conservative alike.
Great points. Incredibly valid, pertinent and necessary blog. The strength of this administration is incredible and is so strong that for many of us it almost immobilizes us into feeling powerless to do anything to stop it.
While I reading this I was thinking about Brown and how for several years the states didn't do anything about desegregation, granted no time table or exact remedy was proposed in Brown, but some frightening things happened. Like Cooper where the power of the court was questioned, and in Griffin where they circumvented the whole scenario and created their own solution and it wasn't until Green that the court finally used strong enough language to mandate desegregation. But even then, they needed the president's backing to get military tanks, etc. to enforce the court's decision.
I don't know what will happen if the justices don't have the courage to both judicially and physically (from the President) demand the obedience of the states.
It will be VERY interesting to see what is done about Congress' action in the Shiavo case. I feel like there has to be some strong official admonishment or else it's open season for politiking in the courts.
Yep, that was a pretty rough time, and we were in more precarious of a position than I think most people today realize. It's just tough that the Judiciary really has no inherent power. The power that's there relies on simply obedience. I'd like to think that DeLay knows the consequences of his actions and wouldn't step too far, but I can't be certain.
The whole thing is starting to look like the film Dogma, with DeLay and Bush playing Bartleby and Loki, the US is God, and the Judiciary is playing the Bethany, the Angels, the Apostle, and, of course, Jay and Silent Bob.
But who is Azrael?