Judicial Independence

Cases & Controversies

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Judges are too political. they’re not political enough. They decide cases according to their personal agendas. They ignore moral values when applying traditional, often outdated legal concepts. They even apply the law of other countries, instead of U.S. law.

You name it–the judiciary is guilty of it, according to one interest group or the other. And during the last decade, criticism of judges and their decisions has been steadily increasing.

Meanwhile, organized efforts are on the rise to overturn controversial decisions, to require judicial candidates to espouse the proper viewpoints and even to exert political influence on the rulings of sitting judges.

Some organizations have taken up the banner of judicial independence, seeking to strengthen the expectation that this country’s judges will not be swayed by political pressure.

Certain cases, in particular, hit a hot button and make people angry. Among those: Roe v. Wade, the 1973 U.S. Supreme Court decision legalizing abortion; the Terri Schiavo right-to-die case that was resolved earlier this year in Florida; and a Supreme Court opinion this spring allowing municipalities to condemn private property for development as a public use.

In response, it is not unusual anymore to see demonstrations, special laws enacted to address particular court rulings and even death threats.

What makes people so angry and upset about this country’s case decisions? Are judges overstepping their authority?

Big Issues–Big Reactions

“The Supreme Court decides cases that are hard cases that reasonable people can disagree with,” says Nancy Marder, a civil procedure professor at Chicago-Kent College of Law. So, regardless of how such cases are decided, someone is going to be angry about those that address important issues, Marder says.

“These are cases, if they went the other way, they would get other people mad,” Marder adds.

“That’s one reason why we turn to the Supreme Court–and impartial judges–and have them work from precedent. They tend to decide cases building upon the past and moving slowly, incrementally, but they’re likely to foment disagreement.”

The source of the disagreement is spelled out right in Article III of the Constitution itself, according to Theodore Olson, former U.S. solicitor general. Supreme Court “judges decide ‘cases and controversies’–that’s what the Constitution says judges do,” said Olson during a speech at the ABA Annual Meeting in Chicago this summer.

“But the Supreme Court is not just deciding a case. It decides rights,” Olson added, ticking off freedom of religion, and rights to privacy and property, among others. “At that level, there’s not just a losing party, there’s a losing point of view,” Olson said. “Sex, life, death–there’s nothing that’s not on the table” for the court. But, Olson said, when the courts decide, “it’s off the table for the political process.”

The result, Olson said, is that it “makes the process into a constitutional convention each time.”

Supreme Court Justice Stephen G. Breyer, speaking at the same conference, referred to his wife, a psychologist, who, he said, summed up the concept of displacement. “You may be angry at X, but you take it out on Y.” That, Breyer said, is why judges bear the brunt of anger over controversial rulings.

For many, the Supreme Court’s very power to decide those issues–and take the ball away from Congress is the source of their wrath. People have objected to that power ever since 1803, when Marbury v. Madison established a rationale supporting the principle that courts have a power of judicial review over the legislative branch.

Described by historian Joel B. Grossman as “the poster child of the American legal system,” Marbury establishes the principle that the courts may determine whether legislative acts are constitutional.

Ironically, the case arose from an issue similar to one raging now that involves the politics of appointing judges. The political atmosphere of the 1790s and early 1800s was as feverish as it is today.

The Federalists, in control of Congress and the presidency since the nation’s founding, had been voted out in 1800. With the prospect of the Republicans taking over Congress and their leader, Thomas Jefferson, ascending to the presidency, the Federalists attempted to stock the nascent judiciary, trying to keep at least that branch under their control.

Among the lame-duck appointments of departing President John Adams was the new chief justice of the United States, a fellow Federalist: John Marshall.

The case arose when incoming Secretary of State James Madison refused to deliver a judicial commission to Federalist appointee William Marbury. Marshall ordered the commission delivered but went further, elucidating the prime function of the court: “It is emphatically the province and duty of the judicial department to say what the law is,” Marshall wrote. Nor, he said, may the Congress endow the courts with powers beyond those allowed in Article III.

Long-Lived and Long Debated

That holding has formed the foundation of Supreme Court review for more than two centuries, but that has not left it immune from criticism–even recent criticism. In his 1985 book, The Federal Courts: Crisis and Reform, Judge Richard Posner speculated that a “decision overruling Marbury would be pretty wild stuff, but it would be self-restrained in my terminology because it would reduce the power of the federal courts vis-à-vis the other organs of government.”

Although the case symbolizes the checks and balances intended to put all three branches of government on a level playing field, says Grossman of the Johns Hopkins University, the Supreme Court nevertheless didn’t invalidate another act of Congress for the next 44 years. That came in 1857 in the notorious Dred Scott case, Grossman says. And even then, the opinion didn’t even mention Marbury; not until 1895 did the court cite Marbury in actually striking down an act of Congress.

Since that time, however, Marbury has become increasingly influential, as the Supreme Court invalidated more than 150 federal statutory provisions in a period of little more than 100 years.

Nonetheless, the case merits “continued reflection and debate,” Grossman says. For one thing, the Supreme Court under Chief Justice William H. Rehnquist “overturned more acts of Congress than all previous Supreme Courts combined.” At the same time, however, no one expects the bedrock principles of Marbury to be overthrown. “Do I think, in the long run, that Marbury will remain in place as the lodestar of American constitutional law? Yes, I do,” Grossman says. After 202 years, “it’s tough to overturn a precedent that old.”

“I think that the notion of judicial review is far too well entrenched for it to be seriously challenged,” agrees David S. Law, who teaches about the federal court system at the University of San Diego School of Law. “What is more likely, but still not especially likely, are efforts by Congress to repeal some of the jurisdiction of the federal courts.”

Who Should Decide?

Many cases are a magnet for criticism not because they are creating new legal standards or because of the way they interpret and apply existing law. Instead, these cases raise hackles simply because a lot of people just don’t like the way they come out. One basic objection to the Schiavo rulings, for instance, is that they permitted removal of the woman’s feeding tube. The long battle over whether Schiavo’s husband could decide to limit her care and allow her to die raises a simple question: Who should decide this difficult question?

Roe v. Wade is another case that has abortion opponents complaining because of the result. But they have another beef as well: The case is based on an individual right to privacy that is not explicit in the Constitution. The critics say that the decision was an inappropriate extension of the judicial role, which should be limited to applying the Constitution as written.

Other controversial cases today deal with the government’s power to suspend citizenship and indefinitely detain terrorists, says Susan Lerner, a Los Angeles lawyer who is the founder and chairwoman of a nonprofit advocacy organization, the Committee for Judicial Independence.

“It’s really shocking to read about what’s happening in Abu Ghraib and Guantanamo,” Lerner says, referring to sites where alleged enemy combatants have reportedly been tortured or held under harsh conditions by the U.S. government. “I think those cases are tremendously controversial, as well they should be.”

Another recent Supreme Court case that has upset liberals and conservatives alike authorizes government entities to condemn private property to allow private development. A number of states have introduced legislation that would prohibit the government from exercising the full power recognized in Kelo v. City of New London, 125 S. Ct. 2655, decided in June.

Some disgruntled by the decision reportedly have gathered signatures from residents in the tiny town of Weare, N.H., to seek government permission to raze the vacation home there owned by Justice David H. Souter, who voted with the majority in Kelo. Death penalty cases, too, often provoke public demonstrations both for and against the execution, when it takes place.

And, as far as specific criminal cases are concerned, the O.J. Simpson murder trial decided a decade ago still is quite inflammatory.

The case–which some believe to this day should have resulted in conviction instead of acquittal of the African-American former football hero–aggravated a number of people who ordinarily consider themselves liberals and divided the public along racial lines. (Simpson lost a subsequent civil case, which was decided under preponderance of the evidence standard rather than beyond a reasonable doubt, and was ordered to pay damages for the murder of his former wife and a male friend of hers.)

Celebrity cases and high-profile criminal cases, in general, often make people in this country angry because there’s a perception, or at least a question, “whether the defendants, quote unquote, ‘bought’ their defense,” says Jeff Chinn, a public interest lawyer who is assistant director of the California Innocence Project at California Western School of Law in San Diego.

Although attorneys usually understand that it takes a certain amount of money to defend a case properly, non-lawyers often “think the more money you have you can basically beat the law that way,” Chinn says.

Perhaps the most controversial case in recent memory was handled this spring by the Florida state court system. Applying traditional legal principles, the Florida Supreme Court ratified lower court rulings that Terri Schiavo’s husband could authorize her caregivers to withhold food and water.

The result, as expected, was that she died within a matter of days, rather than continuing to live in a persistent vegetative state as she had for 15 years.

The Schiavo case was a cause celebre for conservative right-to-lifers. Many demonstrated daily outside the nursing home in which Schiavo lived out the final years of her limited life. As the clock finally started to run out, both the Florida state legislature and U.S. Congress attempted to intervene by passing special laws intended to preserve Schiavo’s life as appeals in the case were exhausted.

Even after her death on March 31, 2005, Gov. Jeb Bush asked a Florida prosecutor to open a new investigation into whether Schiavo’s husband had treated her abusively before she suffered serious brain damage as a result of a heart attack in 1990. A county prosecutor later issued a report finding no evidence of a crime.

The Schiavo case also illustrates the varying emotions that a controversial case can elicit. At the same time that some were decrying the role of the courts in authorizing the termination of a life, others were infuriated by what they saw as improper interference by the legislative and executive branches into what should be a matter for the judiciary to decide.

Such improper interference made a “fiasco” of the Schiavo case and, unfortunately, it is happening in other cases, too, contends the American Judicature Society, a nonpartisan group headquartered in Des Moines, Iowa, that seeks to promote the administration of justice.

The group criticized Rep. F. James Sensenbrenner Jr., R-Wis., chairman of the House Judiciary Committee, for writing a letter to the chief judge of the 7th U.S. Circuit Court of Appeals demanding a correction of an “illegal” sentence in a drug case. “AJS believes that the American people have a right to expect that the leaders of Congress will not go off half-cocked in pursuit of a vision of ‘oversight’ that is not only demonstrably inconsistent with the constitutionally prescribed separation of powers but radically at odds with historical practice,” says University of Pennsylvania law professor Stephen B. Burbank, who chairs the AJS Task Force on Judicial Independence and Accountability.

“There’s a pattern here of aggressive claims of congressional power to engage in oversight that, in my view, manifests ignorance of what the Constitution contemplates and what historic practice indicates is proper and is not proper,” Burbank says. Law, however, says he believes Congress has a legitimate role to play in the political process that helps hold the judicial system in check.

“I think we consistently underrate the amount of power that we have democratically over the federal courts,” Law says. He cites confirmation hearings to explore judges’ views and Congress’ power to limit federal court jurisdiction and, ultimately, to impeach judges in rare instances.

Thus, without threatening traditional judicial independence, “you can achieve the results you want if you appoint someone whose views are predictable,” Law says. “You don’t have to bully them, once they’re on the bench.”

For example, he says, Congress may well have the power to prevent the federal courts from hearing cases on controversial subjects such as abortion. “It’s not clear what, if any, limits there are on Congress’ power to repeal the federal courts’ jurisdiction over certain kinds of cases.”

Misunderstandings Abound

Regardless of Congress’ possible intervention, some legal experts say that many in Congress and the public don’t understand how judges derive their opinions.

According to Ronald Rotunda, a constitutional law professor at George Mason University School of Law in Arlington, Va., too many think that judges follow a doctrine rather than deciding based on principles of law.

“Most judges just decide cases,” he says. “It’s not like religion where you study, you believe, you get baptized and then try to follow this particular doctrine.”

For example, Rotunda adds, “Some of the [Supreme Court] justices like [Antonin] Scalia”–who might be considered partial toward corporations–“have written decisions that the business community doesn’t like.”

For his part, however, Rotunda is somewhat optimistic. “We have a court system that is the envy of the world,” he says.

Routinely, countries that have a very different legal system than ours, based, say, on the Napoleonic code, seek to emulate the American justice system, perceiving it as the best in the world, Rotunda says.

But foreigners do see flaws, especially concerning the often-adversarial congressional hearings to confirm nominations to the U.S. Supreme Court, he continues. “The two things they don’t understand are the confirmation battles and the O.J. Simpson case. I can’t explain them either.” 

It may be difficult to imagine in the midst of heated debate about court rulings that some of today’s most controversial cases could become tomorrow’s revered precedents. One example is Brown v. Board of Education. The 1954 decision outlawing desegregation in public schools ignited a firestorm of criticism in much of the country and had to be enforced in some states by National Guard troops escorting children and young adults to school.

Although Brown is still criticized as an example of judicial activism, it is widely admired as an example of the justices getting it right.

“Now it’s seen as quite the mainstay, very much a part of our culture,” says Chicago-Kent’s Marder.

“Sometimes the judiciary is out ahead. Roe v. Wade might be seen that way and, certainly, Brown. It takes awhile for legislatures and people to catch up,” she adds.

As they jockey for position to present their conflicting views, groups are calling for more public education about what judges actually do when they decide cases.

ABA President Michael S. Greco of Boston has made judicial independence a priority. Saying that the nation’s courts are under unprecedented attack, he has established a Commission on Civic Education and the Separation of Powers to educate the public about the principles of American government.

The commission will be headed by two honorary co-chairs–retiring U.S. Supreme Court Justice Sandra Day O’Connor and former Sen. Bill Bradley–and will be composed of teachers, lawyers, retired judges and legislators. The goal of the commission will be to educate people about the appropriate structure of American government.

“The genius of our system is that the founders separated the powers among the three independent branches of our government,” Greco says. “The ABA will help ensure that the separation of powers doctrine continues to be vibrant, and that the judiciary is not weakened or disrespected. If we don’t protect the courts, the courts will not be able to protect us.”

In the end, unless Marbury ever does get overruled, courts will continue to take touchy cases and make controversial decisions. That, Breyer told the ABA, is the nature of the beast.

“Most decisions say whether one of the parties has gone too far off the rails,” Breyer said. “Where the rails are going, we don’t say. That’s for the democratic process to decide.”


"Cases & Controversies," October 2005, page 38, incorrectly stated, due to an editor's error, that the U.S. Supreme Court in Marbury v. Madison ordered Secretary of State James Madison to deliver a judicial commission to William Marbury. Although the decision was critical of Madison, it didn't order him to deliver the commission since the court lacked authority to make this order. The article also misstated what Brown v. Board outlawed. The decision, of course, outlawed segregation, not desegregation, as the text stated. The Journal regrets the errors.

Martha Neil, a lawyer, is a legal affairs writer for the ABA Journal. Assistant managing editor Richard Brust contributed to this article.

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