Getting Inside the Cult

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finally seems that the American judicial system may have finally
gotten too smart for its own good. Prior to the November ruling
by the Florida Supreme Court, some legal experts were predicting
that the Florida high court would be unwilling to overturn the Secretary
of State's certification of the Bush win. Presumably, they argued,
the Florida Supreme court would be unwilling to sacrifice its prestige
by engaging in such a blatantly partisan action. The predictions
were wrong, and the Florida Supremes did their best to hand Gore
the election. When the case was appealed to the U.S. Supreme court,
there were again predictions that the U.S. Supremes would not want
to jump into the fray of the partisan fight. Well, the justices
couldn't help themselves and they too jumped into the business.
After the U.S. Supremes reversed the Florida decision, the Florida
high court made another attempt to hand Gore the election, and the
U.S. Supreme court slapped them down again. In both of the latter
two decisions, both the U.S. Supreme court and the Florida Supreme
Court have given split decisions, and the U.S. justices have even
taken to publicly criticizing each other before a decision on the
case is even made. All the judicial mythology of unanimity and political
independence of the courts is beginning to look pretty foolish.

since the ink was barely dry on the Constitution, the American courts
have been trying to establish and solidify their independence while
attempting to convince all that they are a breed apart from ordinary
people who let themselves be swayed by vulgar politics. Evidently,
they have been pretty successful at their task. The vast majority
of Americans hold the judicial system in high esteem while elected
legislative bodies are held to be some of the most untrustworthy
groups in America. Few dare criticize the decisions of the U.S.
Supreme Court, and Supreme Court decisions are often invoked as
the final word on various political matters. This is due largely
to Chief Justice John Marshall's assertion in 1803 that the Supreme
Court has the right of judicial review in federal law. No such thing
was written into the Constitution, but Marshall managed to turn
it into a massive power grab for the judicial system. Marshall wanted
to turn the court into a body of sages aloof from common politics.
Detached from local interests and party matters, the judiciary was
supposed to act in the best interest of preserving the law and the
Constitution. Free from the influence of politics, the court would
be able to hand down decisions based strictly on the merits and
the intent of the law. Or so they claim.

Although it has been able to promote its own power fairly well,
the Supreme Court has not always been successful in enforcing its
fiats. When Marshall declared that President Andrew Jackson's Indian
policy was unconstitutional, Jackson ignored the decision and said,
"Mr. Marshall has made his decision, now let him enforce it."
When Chief Justice Roger Taney criticized Lincoln's habit of suspending
habeas corpus, Lincoln just ignored him. The courts know that their
power rests exclusively on their prestige. They do not represent
local or state interests and they do not command any troops or any
army of bureaucrats. They are powerless in executing any of their
laws. To counter this, they work very hard on puffing up their reputations
as unanimous, impartial, and independent bastions as the rule of
law in the hope that someone will actually listen to them.

a result, a cult of judicial supremacy has grown up within the legal
profession. The judges and lawyers within the cult do their best
to always make each other look good and to generally avoid controversy.
They have odd habits like no other branch of government. They wear
strange puffy black robes, and everyone has to stand up every time
they enter the room. No one feels the need to stand up when the
congressman from California's 27th district enters the
room, yet when Podunk County judge Joe Schmoe enters the courtroom,
everyone's suddenly on their feet. Unlike elected politicians who
openly criticize each other and engage in open debate, the modern
Supreme Court and the state equivalents are huddled in a back room
poring over some legal texts trying to figure out how they can best
subvert the law without losing any of their precious prestige and
legitimacy. Like any good cult, they speak sparingly with outsiders
of their own powers and of their role in society.

the election of 2000, the edifice has cracked, and some light has
shone in on the cult. With passions running so high, judges have
begun to show their true colors, and while this would have been
an excellent opportunity to show their supposed judicial restraint,
the Florida and U.S. Supreme courts couldn't wait to get involved.
The judicial infighting that has followed is truly a beautiful thing.
With split decisions and partisan colors flying, the courts have
been so unable to restrain themselves that the hideous innards of
judicial lawmaking have been flung out on the table at last. Publicly
denouncing the decisions of their colleagues, they look more like
Congressmen throwing tantrums than like judges. After this debacle,
the judicial system will have plenty of damage control to take care
of. All the claims of dispassionate deliberation and political detachment
are clearly a sham. In a time when steady and cautious rulings would
have been prudent, the courts involved in the matter have chosen
instead to let it all hang out.

the courts hammer away at each other, the Florida legislature prepares
to name electors as dictated by law, and the Congress stands ready
to decide the election if the matter somehow cannot be resolved
in the Electoral College. As any student of history knows, it is
in the elected branches of governments where disputed elections
have been resolved, yet after 70 years of judicial activism, the
courts just can't manage to bring themselves to allow elected officials
the job of deciding the election. This will be their undoing. If
the courts demand the power to make up new law, then they cannot
claim to be immune from the public scrutiny that lawmaking bodies
must regularly endure. Indeed, this is what the legal experts predicted
when they claimed that the Florida and U.S. Supreme courts would
never be so foolish as to get involved in the election. It is amazing
that the courts would so publicly try to wrest lawmaking authority
from Congress and the state legislatures. Such a move can only undermine
their authority in the long run. If the U.S. and state Supreme Court
judges are seen as the partisan hacks that they really are, it becomes
harder for them to claim superiority over the other branches of
government. The courts have been inveterate power grabbers for a
long, long time. The only difference now is that for the first time,
a lot of people have noticed. The whole affair reminds me of the
old saying: "It's better to keep quiet and be suspected of
stupidity than to open your mouth and remove all doubt." I
have only one thing to say to the supreme courts: keep on talking.

11, 2000

McMaken is a graduate student in American politics at the University
of Colorado. He edits the Western

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