International Judicial Monitor
Published by the International judicial Academy of the International Law Institute, Washington, D.C.
with circulation assistance from the American Society of International Law

Winter 2018 Issue



The State Courts in the United States Are Under Attack

Attack on the Courts
By: James G. Apple, Editor-in-Chief, International Judicial Monitor

In a recent editorial in the New York Times, that newspaper raised the spectacle of  “State Courts Under Attack.” It described efforts by state legislatures and legislators to diminish the roles and power of state courts in their particular jurisdictions within the United States. Many of the objectives of the legislators related to specific decisions of courts. These actions were almost exclusively put forward by extreme right wing members of the Republican Party.

Some of the actions either put into effect or proposed are:

  • Manipulation of the boundaries of voting districts to insure the election of Republican lawmakers and then using the power (1) to reduce the size  of courts so as to deny the Governor of the state the authority to nominate judges to particular courts;  and to require judicial candidates to reveal their political party affiliation for forthcoming elections, even though the election of judges was to be non-partisan.
  • Attempts to reduce the term of years of a trial judge (from eight to two) so that radical partisans can more easily gain and maintain control of judges.
  • Attempts by radical Republican lawmakers to impeach (make charges against) members of a state supreme court for a decision striking down the geographical boundaries of legislative districts because they favored one political party.
  • Providing support for proposed legislative bills that would drastically reduce the amount of funding for courts.

The Times editorial quoted a report from a private organization that monitors courts that “already in 2018 lawmakers in at least 16 states are considering at least 51 bills that would diminish or politicize the role of the judiciary.”

There are two grave dangers in these developments. First they diminish the respect of the public for courts generally. They also have an impact on the idea that judges should be independent of political interference and their ability to decide cases on the basis of law, not public clamor or fear of retaliation by the electorate.

The call of the New York Times for citizens to be aware of these attacks relates to the way courts were originally conceived in the 18th Century at the time states were coming into existence and before the American Revolution and thereafter. The best place to look to determine the views of those who founded the state governments and ultimately the federal government are a collection of political essays (The Federalist Papers) published in newspapers in support of the new Constitution that was being considered by citizens of the several states. The authors were three lawyers: Alexander Hamilton from New York who became the first Secretary of the Treasury; James Madison of Virginia who became the fourth President of the United States; and John Jay of New York, who became the first Chief Justice of the Supreme Court of the United States. Six of the 24 essays written in support of the proposed new constitution dealt with the nature of the proposed new judicial branch of the federal government. They were all written by Alexander Hamilton (Essays #78 - #83)

The basic characteristics of the new judiciary as proposed by Hamilton were:

The independence of the judiciary

Separation of the judicial branch of the government from the other two branches (legislative and executive)

Judicial officers holding office with some degree of permanency

The interpretation of laws and the power of judicial review to determine if an existing law or executive action was in violation of the Constitution.

It should be noted that most if not all of these principles were characteristics of the judicial departments of the state (colonial) governments which had been organized before the Revolutionary War.

Hamilton in one of his essays pointed out the dangers of having a judiciary that would be beholden to the legislative or executive branches of the government and the necessity of judicial review.

He wrote:

 The  complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution I understand one which contains certain specified exceptions to the legislative authority; such for instance as it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all of the reservations of particular rights or privileges would amount to nothing.

It is difficult to determine at this point how far the radicalism of the far right will be carried with respect to changes in the way judges and courts will function. It may be that cooler heads in the various state legislatures will prevail, and the various proposals that would effectively end the authority of state courts will recede in the coming months and be forgotten. However the requirement of democracy for “eternal vigilance” against inroads against the powers and duties of courts require that the voices of reason and rationality and  true democracy must continue to be raised and heard.

This can come about in two ways. First judges themselves and with their courts need to make known the dangers of the changes sought because the changes proposed would greatly affect adversely the administration of justice. Judges have not only the right but also the duty to protect the judiciary and the courts from such dangerous notions.

Secondly the organized bar, bar associations in the individual states and cities should take up the cause of the defending the courts from radical proposals through public education, speaking out against them and providing for programs and materials that will shed light on the dangers of new proposed legislation. The public must be educated about the reasons courts were established the way they were and the ways judges are to be selected, all formulated a long time ago. They must know of the blessings that have been bestowed on the court systems and judges over that long period of time.

ASIl & International Judicial AcademyInternational Judicial Monitor
© 2018 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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