Independent judiciary under attack

By J. Brent Walker

Reflections
April 2005

"It is emphatically the province and duty of the judicial department to say what the law is." Chief Justice John Marshall, Marbury vs. Madison (1803)

Many people today—including many politicians—are ignoring Marshall’s settled principle of our constitutional heritage. Along with the Bill of Rights, the separation of powers between the executive, legislative and judicial branches and the checks and balances among them is fundamental to the preservation of freedom.

The legislative branch passes laws, the executive branch enforces the laws and the judicial branch interprets them. Although the first two branches are thoroughly and properly political, our Founders sought to ensure an independent federal judiciary that would be free from direct political influences.

These long-settled principles are under a withering attack today. Hateful, inflammatory and irresponsible words are leveled at the judiciary—even from the highest offices in the political branches.

In 2004 the House of Representatives passed two bills to strip the federal courts of jurisdiction to hear certain constitutional issues simply because the House disagreed with how it thought the Court would decide them. These measures present enormous separation of powers issues and threaten judicial independence. The House passed the "Pledge Protection Act" to block federal lawsuits involving the Pledge of Allegiance, even cases involving actual coercion. It also passed the "Marriage Protection Act" to strip the federal courts of power to hear challenges to the federal Defense of Marriage Act. Other bills—to deprive the federal courts of jurisdiction to hear Establishment Clause cases involving the Ten Commandments and other government endorsements of religion—were also filed. We have every reason to think these efforts will intensify, particularly if the Supreme Court strikes down the government-sponsored Ten Commandment displays in the two cases that are pending this term.

The recent acts of violence against judges and their families in Chicago and Atlanta and the tragic Terri Schiavo case have provided an opportunity for demagogues to up the ante to a frightening level. Rep. Tom DeLay, R-Texas, House majority leader, sought to bully the judges involved in the Schiavo case, declaring, "the time will come for the men responsible for this to answer for their behavior." He also leveled a not-so-veiled threat of reprisals when he said, "Congress for many years has shirked its responsibility to hold the judiciary accountable. No longer." Moreover, Sen. John Cornyn, R-Texas, suggested on the floor of the Senate there may be a link between recent acts of violence against judges and "raw political and ideological decisions" that judges have issued. As a former justice of the Texas Supreme Court, Sen. Cornyn should know better.

Finally, on April 7 and 8 a group called the Judeo- Christian Council for Constitutional Restoration sponsored in Washington, D.C., a conference titled "Confronting the Judicial War on Faith." The promotional brochure shows a judge's gavel demolishing the second tablet of the Ten Commandments. It goes on to complain about "activist judges who are undermining democracy, devastating families and assaulting ... morality."

Oh really? A war on faith? Undermining democracy? Devastating families? I don’t think so. Judges are human beings who are trying to do their level best to uphold the Constitution, interpret the law and mediate competing claims that come before them. Remember, courts don’t go fishing for cases to decide. They can act only when someone asks them to. The raucous rhetoric surrounding this conference is simply outrageous.

The decisions courts make may be unpopular. In fact, the best they can ever hope to do is please about half the people. And, since federal judges are often interpreting a "counter-majoritarian" Bill of Rights, they often raise the ire of a strong majority.

The decisions courts issue are sometimes wrong. They do not always get it right. I often disagree with the results in Supreme Court cases. I am not doing my job if I fail to critique Supreme Court decisions on the issues. But I do not dispute their right to make those decisions or the good faith of judges and justices 99 percent of the time.

Someone has to make these hard decisions. And they are best made in a non-threatening, relatively apolitical environment. The panoply of freedoms that we as Americans have come to enjoy, religious and otherwise, depend entirely on our understanding that judges, not politicians, have the final say in interpreting the laws—as Chief Justice Marshall rightly pointed out more than two centuries ago.