It 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.
Ever 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.
As 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.
With 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.
While 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.
December 11, 2000
Ryan McMaken is a graduate student in American politics at the University of Colorado. He edits the Western Mercury.