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Tuesday, November 04, 2003
The Problem of Today’s Politics by Judiciary

In her November 3rd op-ed in the Daily Dartmouth, Amie Sugarman cited the intervention in a terminally-ill case by Florida Governor Jeb Bush and the Florida state legislature as evidence of a “separation of powers” crisis because of its conflict with a decision of the United States Supreme Court. Bush and the legislature passed a law written to over-ride the actions of her husband and by extension a ruling of the Supreme Court. Miss Sugarman fears that this course of events could prove disastrous as state legislature or the Congress become drunk with power and assert their authority over the courts. What is disturbing to me is not only her fundamental misunderstanding of history and the interplay between American branches of government, but also how she is representative of an all-to-common aberration of our democracy.

First, Miss Sugarman makes several material errors in her understanding of the United States’ Constitution, to whom what powers are assigned by the authority of that Constitution, and how this dynamic has played out over history. The formal powers given to the judiciary are enumerated in Article III, Sections 1 and 2. In 1788, those powers included jurisdiction of all conflicts under the Constitution, cases involving the federal government, cases between states, foreign citizens and ambassadors. The power which concerns Miss Sugarman most, judicial review is notably absent. This is part of the problem with logic, rather than a cornerstone of our written constitution, judicial review is an inheritance of our common law system. Judicial review as it exists today began of course in 1803 with Marbury v. Madison where the Marshall court justified judicial review. In practice over the years, judicial review has generally been a “good thing.” Laws written by Congress or state legislatures found to be incompatible with our Constitution and the rights it grants us as citizens can be struck down. But note a famous caveat to judicial review, attributed to President Andrew Jackson in 1830 is “Marshall has his decision, now let him enforce it.” The point here is that courts can issue all the decisions they want, but they are enforced only by the good will of the Executive (and as I will argue later an abdication by Congress.)

Two hundred years later judicial review is a growing and monstrous cancer on our democracy, misunderstood by many in what I can only describe as some sort of cultural assumption. Decisions handed down by the Supreme Court of the United States become law if enforced by the President of the United States or set as precedent and authority over lower courts. Yet on many occasions, Congress has in fact written laws specifically to over-ride decisions by the Supreme Court. Congress does have this authority and has used it before, and as we will see later rightly so. It is in fact the President and the Supreme Court that have become too powerful. The action by Governor Bush and the Florida legislature are historically common, passing laws is precisely the method by which the Executive and Legislature check the power of the Judiciary. If pressed, even Constitutional Amendments have been passed. Supreme Court decisions are not immutable either by reversing themselves or by act of a legislature.

But here is the most important point I have to make. Increasingly, over the past half-century or so, interest groups have strategically pushed their agendas through the court system, rather than pursuing the more costly route of beseeching Congress to pass a law. Not only is it financially cheaper to sue than to lobby, but interest groups have a chance of succeeding with logic when they might fail at popularity. Popularity? Yes. Popularity. By its very definition, for a law to pass in Congress it must have the support of the majority of its members in both the House and Senate. Afterwards it must be signed by the President. The House, Senate and President all serve slightly different constituencies and by design capture the will or our representative democracy. This is the very embodiment of our Republic. However, law by judicial decree do not go through this process and do not have the legitimacy that it provides. Agree or disagree with the recent law banning partial-birth abortion, it has the constitutionally defined support of The People--the essence of democracy. Roe v. Wade, whether you are a supporter of it or not, does not have this legitimacy. (I choose Roe v. Wade because it serves as the best and most recognisable example) Roe currently exists as law only because of judicial review. Could abortion supporters have congress pass a law making abortion legal? I don’t know. But this is the insidiousness of judicial review, it provides the means for the circumvention of the democratic process. Now, Amie Sugarland puts more stock in 9 non-elected judges than any combination of elected branches of government. Shouldn’t we, as a nation, be shocked at this development?

Of course, the Supreme Court alone is not to blame. They are only doing their job as best they can. There is another devil at work here. What must also be understood is the shift in institutional responsibility that occurred over the past 80 years. The 20th century saw two successive waves of increasing Presidential authority and responsibility at the expense of Congress. First, FDR’s first administration made the presidency the dominant actor in policy concerning labor and the economy. Second, World War II and its immediate aftermath in the nuclear age, saw the presidency become the dominant actor in policy concerning defense. The demands of these two successive crises and the inability of Congress do answer their rapid and critically important or strategic demands created the presidency we recognize today. Now, the President is the expected source of policy initiatives in all manner of arenas. Congress has conceded most of its role in the formulation of policy and law. Without Congress to initiate writing laws and with the President formulating his own agenda, interest groups naturally see litigation and the Supreme Court as the avenue that strategically gives them the best chance of making the changes they desire.

Combined, these two dynamics of judicial review and institutional responsibility have coalesced over the past century into the true dilemma facing our democracy today. Citizens are disenfranchised by a process and system that enables non-elected judges to make law. I personally find this the most trouble issue of our day because it seems nobody is talking about it and yet it most clearly threatens us all. Interest groups and individual citizens now fear the very organ of government that is constitutionally endorsed source of law. The solution I foresee is a difficult one. Congress must re-assert its institutional position to formulate policy and create law. Congress, that most unwieldy and despised organ of government, is our best hope.