Conservative commentators and politicians are often upset with the judiciary. In the wake of various courts’ refusal to side with them in the singular case of Terry Schiavo, their critiques have increased in tone and message. For example, conservative commentator William Bennett recently asserted in a National Public Radio interview that the courts should not have the final say on the law. Such ideas are dangerous to our democracy and should be treated as such.
While the idea is poor on balance, it is not as absurd as it initially seems. In 1861, then-Chief Justice Roger B. Taney denied then-President Abraham Lincoln’s attempt to claim the power to jail a suspected rebel without trial at the outset of the Civil War. Lincoln ignored the ruling and had his attorney general write a legal argument that argued the executive has a concurrent power to interpret the Constitution.
While an interesting legal theory, it goes directly in the face of judicial supremacy, a doctrine that has served the country for more than two centuries. Ever since then-Chief Justice John Marshall’s opinion in Marbury v. Madison, the country has assumed the judiciary is its democracy’s ultimate authority on legal questions. While not perfect, this is the way it should be.
The very reason conservatives get upset with federal courts is why they are the best arbiters of legal questions: They are not an elected body. The president nominates and the Senate approves all federal judges, who serve until they choose to retire.
This independence makes them best able to interpret U.S. statutes and the Constitution. Federal judges are not beholden to special interests’ money or political support. Their future is not dependent on a majority re-electing them. Also, they have consistently shown themselves better able to (though again not perfectly) protect the basic constitutional rights of political or other minorities than Congress or the executive branch.
There are theories of democracy that do not include minority protections and judicial supremacy, but ours is not one of them. Forgive our cynicism, but the current resurrection of the anti-judiciary sentiment doesn’t seem to be about esoteric ideas of democracy.
Conservatives control two branches of government. They have and will continue to effect most of their policies. But they see the biggest obstacle to implementing all of them as the judiciary. In reality, this is all an attempt to remove that hurdle.
These political temper tantrums should be ignored by the public and legislators alike. Our civil rights and even the democracy we enjoy depend on it.
