pudge's Journal: Judicial Independence

I love Ramesh Ponnuru, senior editor for National Review. The guy writes with impeccable logic, slicing through the B.S. to get to the heart of the matter.

In Independence Day, he writes about the notion of judicial independence. Unfortunately, you can't read the whole thing unless you're a subscriber, but he makes this important point:

The first thing to note about this kind of judicial independence is that it should constrain judges at least as much as anyone else. If judges themselves allow their political preferences to affect their reading of (or worse, to trump) the law, then they squander what is valuable about judicial independence. Likewise if they place the institutional interests of their courts ahead of the law, effectively making themselves parties to the case. If these things have happened on a wide scale, as we and many other conservatives (and even some liberals) believe, then they have happened at a cost to judicial independence -- and it makes little sense to accuse anyone who wants to do something about it of opposing judicial independence.

...

Chief Justice Rehnquist gives a more plausible answer: The only checks we have used against the courts, historically, are the appointment and amendment processes. Congress has not impeached judges for their decisions, and has not restricted the courts'jurisdiction over constitutional matters. This traditionalist answer, however, fails to reckon with the possibility that the courts' arrogation of power over the last few decades has been unprecedented. If that is true, as many conservatives believe (sometimes as a result of reading Rehnquist's dissenting opinions), then the force of the traditionalist argument dissipates. New challenges sometimes call for new responses.

Ponnuru, and his coauthor Robert P. George, then go on to back up the argument that the courts have been acting in an unprecedented fashion, in a way at odds with the whole concept of judicial independence. Though that part of the piece is not entirely satisfactory, it doesn't really have to be, as the main point is that the "encroachments" offered by members of Congress, if they are unprecedented, are justified if the courts are acting in an unprecedented manner as well. Whether the courts are acting in such a manner is up for debate; the logic behind the reasonableness of acting in such a situation is, given the arguments in this piece, far less so.

Good stuff.

Judicial Independence has lost its meaning

[mwlewis]

"Judicial independence" seems to be one of those phrases, like "Separation of Church and State" that has evolved a whole new meaning from what was likely the original intent (if one even cares about that!). You hear lots of arguments about how the courts are an important part of the checks and balances on the other two branches, but if those two try to check and balance back, why then it's the End of the Republic or something.

I don't think it would be good if judges were being impeached left and right,

Re:Judicial Independence has lost its meaning

[pudge]

if those two try to check and balance back, why then it's the End of the Republic or something.

Yes, and it is OK for Congress to criticize the President, but not a judge? Please. Also the President can't criticize the Senate for not acting, but they can criticize him for his choices. It's nonsense.

But regardless, the court was the *least* powerful branch in its inception, and now it supposedly has the most power. Flummery.

I don't think it would be good if judges were being impeached left and right

Re:Judicial Independence has lost its meaning

[buffer-overflowed]

Well in all fairness the court gained much of it's power while most of the founders were still alive. And which branch is the most powerful is really a matter of opinion. Yea, the judicial can reinterpret(rewrite) or overturn laws passed by the congress, but they can't really just make stuff up w/o something to work with, nor can they actually execute laws(the executive does that).

Personally, I'm more irritated about congress shoehorning everything into the "general welfare" clause than anything else.

Re:Judicial Independence has lost its meaning

[pudge]

Well in all fairness the court gained much of it's power while most of the founders were still alive.

That is debatable at best, and I would tend to disagree. As Ponnuru wrote: "Nothing John Marshall said approaches the claims of judicial supremacy made by the Supreme Court in Casey, City of Boerne, or Dickerson -- to cite three cases from the 1990s."

And which branch is the most powerful is really a matter of opinion.

Not according to James Madison, who wrote, "In republican government, the legislative

Re:Judicial Independence has lost its meaning

[ces]

That is debatable at best, and I would tend to disagree. As Ponnuru wrote: "Nothing John Marshall said approaches the claims of judicial supremacy made by the Supreme Court in Casey, City of Boerne, or Dickerson -- to cite three cases from the 1990s."

I'm going to leave Casey aside (mostly because I don't really want to get into a discussion of Roe v. Wade right now.), but I don't really see how the court was exceeding it's bounds in City of Boerne or Dickerson.

Too easy

[M.C. Hampster]

...but they can't really just make stuff up w/o something to work with...

Uh, see Roe vs. Wade ;-)

Re:Judicial Independence has lost its meaning

[glitchvern]

Yes, and it is OK for Congress to criticize the President, but not a judge? Please. Also the President can't criticize the Senate for not acting, but they can criticize him for his choices. It's nonsense.

My favorite was when the White House Press Secretary was asked if it was appropiate for him to criticize NewsWeek and who died and made him editor of NewsWeek. Why he didn't ask who died and made the reporter White House Press Secretary I don't know.

Re:Judicial Independence has lost its meaning

[pudge]

That would have been a good answer. I'd have been more blunt: "since when can I not comment on things Newsweek, or any media outlet does? Freedom of the press does not make the press free from criticism, as much as you all would like it to."

Re:Judicial Independence has lost its meaning

[ces]

Personally, I kinda like Newt's idea of flushing the whole federal court system and starting fresh (remember, the only court mentioned in the Constitution is the Supreme, and even there, Congress gets to decide how many Justices sit on it).

I think FDR tried something like that with his attempt to pack the court. I don't think that went over with the voters too well. I somehow doubt a similar move would go over any better now days. Especially considering that this President and this Congress enjoys much le