September 21, 2003

Judicial Politics

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The executive and legislative branches we have always expected to be highly political, and although we have always known the judicial branch has its politics as well, he have, perhaps naively, expected that branch of government to be relatively objective in their rulings. We did not expect them to be outright party hacks. Yes, we have expected that their political biases to swing their judgment in an underlying, philosophical way; for instance, to favor Constitutional Constructionism as a way to justify conservative biases. This covert rule of bias at least allowed us to covet the belief that the judiciary was still above the fray, that we could count on the courts as being the final bastion of objective fairness.

That objectivity, whether true or simply a thin sheen, has been quickly evaporating over the past few years, and the judiciary has evolved into a political system all too much like the other two branches of government. It was doubtlessly energized by the standardization of court-stacking that evolved, in the 20th century, into the fine art conservatives have made of it (place young judges with known far-right leanings but little in the way of a paper trail, so as to control benches for decades). The overt politics-over-law trend, however, started to come fully out in the open with the 2000 elections, and the purely partisan ruling in Bush v. Gore, a ruling that had far more basis in politics than in actual law (read Vincent Bugliosi's The Betrayal of America for further edification).

Another such outburst, lesser-known, was when the Fifth Circuit court, in 2001, used the case United States v. Emerson in an attempt to single-handedly re-interpret and reverse a long history of high-court decisions, including two Supreme Court decisions, on the nature of the Second Amendment to the Constitution. Over a hundred high court decisions, including the two by the Supremes, had held steadfast in the interpretation that the Second Amendment applied only in militia, or military, situations, and did not guarantee an independent, individual right to keep and bear arms.

The Emerson case, interestingly enough, did not even touch on Second Amendment rights, but two of the three judges on the Fifth, both strongly right-wing, issued what is called a "dicta" ruling--essentially, a ruling on law that is unconnected to the case. In the dicta, these two justices rewrote more than 60 years of judicial history and unilaterally declared the Second Amendment an individual right.

This ultraconservative judicial coup prompted an opposite but more than equal response from the more liberal 9th Circuit, which ruled in Silveira v. Lockyer in 2002 that the 5th Circuit was incorrect, and re-instituted the long-standing legal rulings on the matter. A good, brief, and objective reading of the story can be found here.

But the politics had come out of the judicial closet. And in a manner very similar to all this, the hard-right-wing judgment from the Supreme Court in Bush v. Gore was answered by a liberal trio from the 9th Circuit last week when it cited the 2000 decision in its ruling to delay the California elections until March of 2004. And now, a group of eleven conservative judges on the 9th is seeking to overturn their brethren early next week, in a move that is more of a political gunfight at the O.K. Corral than a stately, informed judicial proceeding.

We are beginning to see judges become outright politicians more and more often, as with judge Roy Moore in Alabama trying to force his own personal view of the First Amendment, and with the aforementioned 5th Circuit in Texas forcing their personal views on the Second.

Add this to John Ashcroft taking a partisan political stand on the law, and at the same time trying to rework several of the Amendments on his own, and we have a state of affairs which is truly dismal indeed. What used to be, at least, the outward appearance of judicial restraint and objectivity is breaking down into down-and-dirty politics. Of course, there are still quite a few fair judges out there, but they are at best being heard less above the political roar, and at worst, are being replaced by a new generation of political judges.

Lady Justice is taking off her blindfold, and choosing sides. Say goodbye to the balance, and watch out for the backswing on that sword.

Posted by Luis at September 21, 2003 12:08 AM

You have painted an example of judicial activism which, while bad, is not nearly as bad as that I describe at my website, This web page shows a Bush I 1992 appointee has gone beserk. Check it out!

Posted by: Marcellus Mason at March 27, 2004 03:55 PM