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.