We regularly hear about how important it is to have an independent judiciary. However that leaves out an important point: Independent of what? The idea behind judicial independence is that neither congress nor the president should control the judicial branch of our government. That is great, it is one of the checks and balances our founders built into the constitution. The judiciary should be free to judge according to the law and constitution. However judges should not be independent of that law and constitution.
Exhibit A for an independent judiciary is probably Franklin Roosevelt's 1937 attempt to stack the Supreme Court. That court had overturned some of his programs as unconstitutional, so he attempted to get congress to add more justices whom he would appoint. That failed, but Roosevelt was eventually able to appoint a majority of justices and get what he wanted anyway. He succeeded in removing the court's independence, at least temporarily. We are still living with the legacy of his court and the massive expansion of the federal government it allowed.
On the other hand, it sometimes appears that our judiciary is independent of the law and the constitution. That is not what was intended and it is dangerous to our freedom and to the rule of law. The constitution envisions not three separate governments but three branches of one government, each helping keep the others in check. When judges act with little regard for the constraints of law, they become a separate government – a government not accountable to the voters. That can allow them to take on aspects of a dictatorship.
A case from Clackamas County Oregon illustrates the point. In 2008 Russell Paul Hamblen was accused of rape, sodomy, and sexual abuse of minor girls. It looked like a good case for prosecutors, especially since his son and co-defendant had already pled guilty and been sentenced. Bail was set at $500,000. So far so good, that would likely keep a pedophile off the street – unless Judge Deanne Darling had her way. She ordered the state to post his bail! Her “reasoning” was that Hamblen should be free so he could help plan for the care of another son. There was nothing in the law or any precedent to support her order, she just made it up to suit her own belief.
Darling acted independently of other branches of government, but also independently of the law. Fortunately her order was overturned on appeal, but what if such an order were to come from the Supreme Court? There would be no appeal.
“But wait,” you say. “Surely no supreme court would ever act in that manner.” Are you sure about that? Consider the issue of homosexual marriage. In 2006 the New Jersey
Supreme Court ordered the legislature to pass a law allowing same-sex marriage or creating a similar institution for same-sex partners. So much for separation of powers, that court treated the legislature as a servant to be ordered around. Again the court was not only independent of the governor and legislator, but also of law and constitution. Other state supreme courts have likewise overruled constitutional law on this issue.
The U.S. Supreme Court? Surely that one is immune to such nonsense, is it not? No, it is not. Congress passed the Civil Rights Act of 1964 with the explicit promise that quotas would not be required. Yet today we have de facto quotas in many areas, mandated by the courts and approved by the Supreme Court. Though the court has backed off somewhat in its support of such quotas, they still effectively exist in many areas. Many businesses and state and local governments set out hiring and promotion “goals” for fear of being sued.
An even more frightening possibility is the desire of some justices to apply foreign law to the U.S. Though it has not yet become a majority view on the court, there are some justices who clearly want such law to be a factor here. They want to act independently of the constitution which clearly states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land...” Nothing there about following the laws of European countries from whom we freed ourselves over 200 years ago. Yet Justices Kennedy, Ginsburg and Breyer seem to think they should look to foreign law for guidance. Justice Sotomayor, the newest justice, has in the past appeared to agree with that sentiment.
When judges look around for foreign law that supports their own prejudices, they are looking for a way to circumvent our own law and constitution. That places them in the position of dictators, ignoring the rule of law in this country. They thereby declare their independence from law and constitution. If Canada wants a law against criticizing homosexuals it may have such a law. If France wants a law against publishing anti-Islamic opinion, it may also have such a law. However those laws would pertain only to Canada and France, not to us.
This is an important reason why we must insist on judges who are committed to our constitutional form of government. They must have the integrity to put aside their own preferences and rule on the basis of our law and constitution. They must commit to independence from other branches of government but they must also commit to strict dependence on the law and the constitution. They are not independent rulers but are to be agents of the people according to the conditions set out in that law and constitution.
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