Now in Legal Rebels:
Posted Jun 28, 2005 04:09 pm CDT
Judicial independence is as old as the United States, and it serves as one of the establishing principles of our country and our democratic form of government. Yet as much as the independence of the judicial branch is a core value of the nation, it has never been an absolute. Political attacks on that very independence have nearly as long a history as the Constitution itself.
A premier example is the landmark case Marbury v. Madison, which underlies the power of the U.S. Supreme Court to review legislative or executive acts and to overrule those that it deems unconstitutional.
Chief Justice John Marshall’s courage was on display when he rendered that decision. He wrote, “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”
On that day in February 1803, Marshall was not only articulating the notion of judicial review. He was establishing the judiciary as an independent, co-equal branch of the federal government and an integral link in our system of checks and balances that safeguards against the possibility of one branch seizing supreme authority.
The implications and influence of Marbury v. Madison continue to resonate through the Terri Schiavo case, where balance of power was demonstrated when the federal courts checked Congress in its attempt to circumvent the determination made by state court judges. A similar balance was demonstrated in Rumsfeld v. Hamdi, when the Supreme Court checked the president’s attempt to deny a U.S. citizen the right to contest the basis of his detention and the right to counsel in the fight against terrorism.
Democratic values and the rule of law are the heart and cornerstone of the freedoms Americans cherish. An independent judiciary one free of intimidation and manipulation–is essential to our government of separate but equal branches, where cooperation and respect among the branches are necessary.
The American Bar Association has long been concerned with the independence of our judiciary. As our nation’s founders and the framers of our Constitution recognized, it is not in the country’s best interest to compromise on this issue.
As ABA president, I have responded to and will continue to respond to attacks on the independence of the judiciary and the Constitution. As members of the legal profession, I know you share my concern over the public’s confusion and misunderstanding of the judiciary’s role as it has been espoused by politically motivated criticism, which we witnessed in the wake of this spring’s Schiavo case.
While criticizing judicial decisions is a time-honored practice, efforts to intimidate and threaten judges are not part of that tradition. It is at this moment when careful analysis, measured response and thoughtful leadership are needed– leadership that those of us in the legal profession can and should provide.
It is vital that the legal community address the current atmosphere in which our legal system operates and what can only be called a decline in civility and respect toward our justice system. Lawyers have a responsibility to serve as an example and set the tone for the treatment and critique of judges, as well as of jurors and the jury system, which together are the foundation of the United States’ democratic form of justice.
Lawyers, judges and bar associations are the best means to inspire public trust and confidence in our justice system. Together, we are a powerful voice for the ideals of justice and democracy in which our country is steeped.
The America we know is one that respects our judges and jurors. As the voice of the legal profession, it is our responsibility not to allow those among us who would do it harm in any form to destroy the very freedoms our legal system is entrusted to protect.