Monday, April 11, 2005

This Whole Courtroom is Out of Order

Republican attacks on the judicial branch are getting scarier by the day. Although it seems that nothing can be scarier than suggesting that recent violence against judges and their families are retribution for activist decisions – I would argue that the view that some Republican’s have that the bench should be responsive to Congress is in fact much more frightening. There have been calls recently for cutting the budgets of certain courts or even impeachment of activist judges.

Before I go any further, I think exploring the idea of what is an activist decision is in order. The term is often used by conservatives to attack liberal judicial decisions. But judicial activism is really meant to describe decisions that appear to be outside the role of the judicial branch and usually those decisions where it looks like the majority of the judges are inserting their political beliefs into their decisions. For example, both Roe v. Wade and Bush v. Gore could be considered activist decisions, as could Boy Scouts of America v. James Dale and PGA Tour v. Casey Martin. What is apparent though is the incredibly subjective nature of the term judicial activism.

The recent criticism of the courts is definitely an attack on liberal decisions. Michael Schwartz, Chief of Staff for Senator Tom Coburn, said that a federal judge’s tenure is for life as long as the judges behave. He goes on to say that Justices Souter, Breyer, Ginsberg, Kennedy, “and the rest of that crowd” have not been behaving. Although a federal judge can be removed by impeachment, the founders never intended impeachment to be used when judges were making unpopular decisions. In fact they intended quite the opposite. The judicial branch was meant to protect the rights of the minority and be insulated from the whims of the majority. By allowing for Congress to remove any judge they disagree with (or cut the budgets of those courts they disagree with), the judicial branch becomes as responsive to the majority as Congress itself. Once that happens, judges are no longer free to make decisions based strictly on law (and with an eye on preventing the rights on the minority from being trampled by the majority) and will be making decisions based on the political winds of the time.