Judges | Blogstitution

I just finished listening to a really great podast compliments of the official Stanford podcast (side note: I highly recommend adding this to your itunes podcast selection for the content quality and variety alone).

The speaker was Larry D. Kramer and he was speaking about his new book, “Popular Constitutionalism“. The basic thrust of his book is that the constitution’s interpretation should be left to the legislative and executive branches–or, at the very least, not so dependent on the unquestionable “final say” of the judicial branch.

In fact, he makes some great points:

1) The Revolutionary War (and, more broadly, the reason for America’s division from Great Britian was actually a dispute about the failure of the British government to uphold the BRITISH constitution–one that guarenteed rights of representation which the colonists were not able to exercise.

2) After having a war fought for the right of self-determination, would the founding fathers suddenly be willing to give up that right to a handful of unaccountable, unelected judges?

3) The Supreme Court was never intended to be the final arbitrar of CONSTITUTIONAL RIGHTS… it was not until Marbury v. Madison that the Supreme court took on this role. On a broader level, the courts were only to be one voice in a loud chorus of voices that debated the constitutionality of laws.

After listening to his speech, I must admit I felt challenged in my “originalist” tendencies. It seems that originalism isn’t necessary a very “originalist” method of constitutional interpretation. Nevertheless, we can’t pretend that ‘populist’ interpretation can co-exist with an entrenched judiciary that still commands absolute fealty when determining constitutionality.

I don’t have hours to touch-up this post and fully develop many of these thoughts… but hey, that’s what the comments section is for!

I’ve been contemplating this blog for over a year now… and in that time, I’ve collected a number of articles I wanted to specifically comment on. One of them was an op-ed by former Supreme Court Justice Sandra Day O’Connor titled “The Threat to Judicial Independence”.

This article was written in response to a number of proposed state amendments–at least one of which was named “JAIL 4 Judges”–which would allow special grand juries from ‘censuring’ judges for unpopular decisions. The text of the proposed Amendment is not really important for our purposes, it is sufficient to say the article was focused on threats to judicial independence generally; the proposed amendment was simply a good reason for the Wall Street Journal to publish an article on the topic.

A number of things struck me about the article. First, to lay a groundwork, O’Connor warns that,

We must be more vigilant in making sure that criticism does not cross over into intimidation… Judges who are afraid–whether [for their] jobs or fear for their lives–cannot adequately fulfill the considerable responsibilities that the position demands.

Examples of this “intimidation” include, but are not limited to,

Measures that would forbid judges from citing foreign law when they are interpreting the Constitution… the proposed creation of an inspector general to investigate and monitor the federal bench… [and] legislation [that] would prohibit the Supreme Court from considering whether the Pledge of Allegiance’s inclusion of the words “under God” violates the First Amendment…

Perhaps I’m missing something but what is so wrong with congressional oversight? Isn’t congressional oversight what allows Supreme Court Justices to be confirmed? Is not impeachment the ultimate congressional veto? What would be SOO wrong with this? I think it could be reasonably argued that Congress’ hesitance to play the impeachment card warrants a new and more tangible form of oversight? Perhaps.

Next, what is so “intimidating” about limiting the Jurisdiction of the Federal Courts? Is this not a power the Constitution expressly reserves to Congress? Does O’Connor mean to imply that the Constitution is “intimidating”? I hope you can sense my disbelief.

Regarding the foreign law, I am inclined to take issue with her, but perhaps this post is not the best opportunity for such a discussion.

Why the courts should be immune from “intimidation” or “criticism” is beyond me. Intimidation does not occur because of a critic’s veracity but results from the insecurity of the accused. O’Connor’s concerns that the lives of Justices will be threatened is, in my opinion, completely unwarranted. In fact, as a causal observer, it almost looks as if she is using that hypothetical to instill fear and intimidation into voters minds… as if voting for one of these proposed amendments will lead to judicial assassinations or some other evil.

Judicial criticism is not something to be feared, but something to be practiced in a democratic society.

Tag Archives: Judges

“Popular Democracy and Judicial Review”

“Judicial Independence”