The CourtZero book, Chapter Six

Wow, I haven't posted a serialization of the CourtZero book since May! Let's fix that right now.

Chapters 1 - 5 can be found at these links: one, two, three, four, and five.

The audiobook version of this chapter can be downloaded here. All of the audio chapters can be found at this link.

Chapter Six is a short one, but crucial to the rest of the discussion. What does "judicial activism" mean, anyway? What should "independence of the judiciary" mean? Here we go:

Chapter Six
Let’s define the terms

We need to agree on what some words mean. Let us define the phrases “judicial activism” and “independence of the judiciary”, so that we can get on with our discussion of the courts and how they affect us.

What, then, is “judicial activism”? Those who want judges to overturn the will of the people will tell you that judicial activism is any court decision with which you don’t agree. Surely there’s more to it than that. Most of us want judges to be like a good Jerry from the basketball game, with a long memory and a sense of honor and fairness. Most of us understand that in a representative system of government there will sometimes be laws that we do not like or with which we do not agree, and most of us accept that.

Those who want judges to be more predictable and to uphold established law will tell you that judicial activism is when judges either ignore or change the law in order to make the outcome what they want it to be, whether what they want is motivated by personal opinion or outside influence.

When courts rule in ways that go outside of the will of the people, and the nation allows it, the courts are granted the power of black-robed priest-kings, to decide how each of us is to behave. When we allow it, the courts decide what expression and beliefs it approves of or disapproves of, and begins to control our lives and our ability to govern ourselves through our elected representatives. It certainly seems that there is nothing that citizens, voters, governors, presidents, senators, congressmen or soldiers can do about the power that the courts claim for themselves. And if the United States Supreme Court gets an issue wrong, we’re just stuck with it. It’s not enough to be comforted by the fact that we can amend our state and federal constitutions, for reasons we will soon see.

In reality, the other two branches of government, Ed and Larry, are supposed to keep catastrophic court decisions in check. The problem is that Ed and Larry aren’t doing their jobs properly. They seem to lack the will. The other two branches of government have simply surrendered to the courts.

The counter-argument is that courts should be independent, and that they ought to be able to dispense justice no matter what political winds might blow at the moment. That is a good argument, as long as the courts have a track record of adhering to the Constitution – and actually dispensing justice – while they maintain their independence. They all too often do not, while those who favor court interference in social issues will throw the words “independence of the judiciary” at the rest of us like a weapon.

The phrase, or notion, of “independence of the judiciary” really means that judges and courts should be free to make good, reasonable, and lawful decisions without bowing to pressure from political concerns, special interests, bribery, financial interests, the results of drinking binges, or because one side in a lawsuit has incriminating photographs. All of that makes sense. Courts ought to issue decisions calmly, deliberately, and with only one thought: that they are keepers and defenders of “the law.” Given that we are a free people, who are largely literate and educated, it stands to reason that not many court decisions ought to surprise or distress us. We would expect that nearly every court case would simply apply the law to the particular litigants who are before the court, and be at least a little predictable, and not a coin toss depending on what judges are on the panel.

The whole point is that the courts have to maintain an image of independence, or else the people will lose confidence in the courts. That also makes sense. Since the courts have no money and no army, they need our confidence or else our system of government begins to break down. So tell me, how confident are you in the courts?

How a person defines these phrases, and how one thinks about the role of the courts, should not have anything to do with that person’s politics. Liberal and conservative alike should be concerned about activist judges. History, as we will see, teaches that lesson. Republicans, Democrats, Independents and Libertarians all should want the courts to be independent, but reality says otherwise. It simply is not so. The independent judiciary is a myth, and that is not good for citizens of any political point of view.