From: "John Hurst", [EMAIL PROTECTED]
>>It really is most difficult to see any connection between this type of
>>argument and the real world. Are you really saying that the will of the
>>people today cannot overturn an agreement made three hundred years ago by
>>two groups of aritocrats who were by no means representitive on any form
of
>>democracy in the way we now understand it?
Keith,
The following article on Judicial activism my be prophetic for the
UK.
Regards, John Hurst.
===========================================================
Getting Inside the Cult.
by Ryan McMaken
It finally seems that the American judicial system may have finally gotten
too smart for its own good. Prior to the November ruling by the Florida
Supreme Court, some legal experts were predicting that the Florida high
court would be unwilling to overturn the Secretary of State's certification
of the Bush win. Presumably, they argued, the Florida Supreme court would be
unwilling to sacrifice its prestige by engaging in such a blatantly partisan
action. The predictions were wrong, and the Florida Supremes did their best
to hand Gore the election. When the case was appealed to the U.S. Supreme
court, there were again predictions that the U.S. Supremes would not want to
jump into the fray of the partisan fight. Well, the justices couldn't help
themselves and they too jumped into the business. After the U.S. Supremes
reversed the Florida decision, the Florida high court made another attempt
to hand Gore the election, and the U.S. Supreme court slapped them down
again. In both of the latter two decisions, both the U.S. Supreme court and
the Florida Supreme Court have given split decisions, and the U.S. justices
have even taken to publicly criticizing each other before a decision on the
case is even made. All the judicial mythology of unanimity and political
independence of the courts is beginning to look pretty foolish.
Ever since the ink was barely dry on the Constitution, the American courts
have been trying to establish and solidify their independence while
attempting to convince all that they are a breed apart from ordinary people
who let themselves be swayed by vulgar politics. Evidently, they have been
pretty successful at their task. The vast majority of Americans hold the
judicial system in high esteem while elected legislative bodies are held to
be some of the most untrustworthy groups in America. Few dare criticize the
decisions of the U.S. Supreme Court, and Supreme Court decisions are often
invoked as the final word on various political matters. This is due largely
to Chief Justice John Marshall's assertion in 1803 that the Supreme Court
has the right of judicial review in federal law. No such thing was written
into the Constitution, but Marshall managed to turn it into a massive power
grab for the judicial system. Marshall wanted to turn the court into a body
of sages aloof from common politics. Detached from local interests and party
matters, the judiciary was supposed to act in the best interest of
preserving the law and the Constitution. Free from the influence of
politics, the court would be able to hand down decisions based strictly on
the merits and the intent of the law. Or so they claim.
Although it has been able to promote its own power fairly well, the Supreme
Court has not always been successful in enforcing its fiats. When Marshall
declared that President Andrew Jackson's Indian policy was unconstitutional,
Jackson ignored the decision and said, "Mr. Marshall has made his decision,
now let him enforce it." When Chief Justice Roger Taney criticized Lincoln's
habit of suspending habeas corpus, Lincoln just ignored him. The courts know
that their power rests exclusively on their prestige. They do not represent
local or state interests and they do not command any troops or any army of
bureaucrats. They are powerless in executing any of their laws. To counter
this, they work very hard on puffing up their reputations as unanimous,
impartial, and independent bastions as the rule of law in the hope that
someone will actually listen to them.
As a result, a cult of judicial supremacy has grown up within the legal
profession. The judges and lawyers within the cult do their best to always
make each other look good and to generally avoid controversy. They have odd
habits like no other branch of government. They wear strange puffy black
robes, and everyone has to stand up every time they enter the room. No one
feels the need to stand up when the congressman from California's 27th
district enters the room, yet when Podunk County judge Joe Schmoe enters the
courtroom, everyone's suddenly on their feet. Unlike elected politicians who
openly criticize each other and engage in open debate, the modern Supreme
Court and the state equivalents are huddled in a back room poring over some
legal texts trying to figure out how they can best subvert the law without
losing any of their precious prestige and legitimacy. Like any good cult,
they speak sparingly with outsiders of their own powers and of their role in
society.
With the election of 2000, the edifice has cracked, and some light has shone
in on the cult. With passions running so high, judges have begun to show
their true colors, and while this would have been an excellent opportunity
to show their supposed judicial restraint, the Florida and U.S. Supreme
courts couldn't wait to get involved. The judicial infighting that has
followed is truly a beautiful thing. With split decisions and partisan
colors flying, the courts have been so unable to restrain themselves that
the hideous innards of judicial lawmaking have been flung out on the table
at last. Publicly denouncing the decisions of their colleagues, they look
more like Congressmen throwing tantrums than like judges. After this
debacle, the judicial system will have plenty of damage control to take care
of. All the claims of dispassionate deliberation and political detachment
are clearly a sham. In a time when steady and cautious rulings would have
been prudent, the courts involved in the matter have chosen instead to let
it all hang out.
While the courts hammer away at each other, the Florida legislature prepares
to name electors as dictated by law, and the Congress stands ready to decide
the election if the matter somehow cannot be resolved in the Electoral
College. As any student of history knows, it is in the elected branches of
governments where disputed elections have been resolved, yet after 70 years
of judicial activism, the courts just can't manage to bring themselves to
allow elected officials the job of deciding the election. This will be their
undoing. If the courts demand the power to make up new law, then they cannot
claim to be immune from the public scrutiny that lawmaking bodies must
regularly endure. Indeed, this is what the legal experts predicted when they
claimed that the Florida and U.S. Supreme courts would never be so foolish
as to get involved in the election. It is amazing that the courts would so
publicly try to wrest lawmaking authority from Congress and the state
legislatures. Such a move can only undermine their authority in the long
run. If the U.S. and state Supreme Court judges are seen as the partisan
hacks that they really are, it becomes harder for them to claim superiority
over the other branches of government. The courts have been inveterate power
grabbers for a long, long time. The only difference now is that for the
first time, a lot of people have noticed. The whole affair reminds me of the
old saying: "It's better to keep quiet and be suspected of stupidity than to
open your mouth and remove all doubt." I have only one thing to say to the
supreme courts: keep on talking.
December 11, 2000
Ryan McMaken is a graduate student in American politics at the University of
Colorado. He edits the Western Mercury.
Cybershooters website: http://www.cybershooters.org
List admin: [EMAIL PROTECTED]
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