Wednesday, November 28, 2007

U.S. Supreme Court Judicial Review

Alexander Hamilton wrote in the Federalist Papers, the need for an independent judiciary separate from legislative and executive branches. This was wise thinking. However the turning point came with the case of Marbury v. Madison. The Constitution mentions no use of Judicial Review to strike down laws although the doctrine has been inferred from that document. However over the last few decades and especially during the 2000 presidential elections, there seems to be a political agenda orchestrated by the Supreme Court in favor of a certain ideology. Therefore the question lies, “is the power of Judicial Review antidemocratic?

The people do not elect the Supreme Court’s Judges, but a small group the people have elected do, the President and Congress. This does not automatically make the Supreme Court actions democratic. As we have seen in recent times, ideology and politics play a huge role in decision-making. The 2000 presidential elections were concluded with a Supreme Court ruling that undermined the very core of democracy. The people’s votes were overturned by an interpretation of law. The people would be far better served of many court rulings through a referendum. Such hot topics as Abortion and Gay rights should not be left to an ideologically driven few, but to the people. Especially when the term for a Supreme Court judge is lifetime, which can lead opinions to be outdated. This process can even be viewed as a form of dictatorship, where the peoples view is ignored for the opinion of a few.

Regarding the question whether “courts being granted more power than the other branches”, is a difficult answer to make. Once the judges are elected, it can be argued that yes the courts do have more power. However a case is decided at a lower level, it can be carried over through appeal, ending up in the Supreme Court. Depending on the leanings of the judges, the ruling can go against both legislative and executive branch decisions. It can be many years before the opportunity arises for a change of ‘bench philosophy’, and then this will be influenced by the leanings of the executive and legislative branches.

Ultimately the courts need to arbitrate fairly and without bias. If this is seen as compromised, the public’s confidence will diminish. In our new era of instant information, public opinion is a force to be reckoned with. An unprecedented movement evolved after the 2000 presidential debacle, which was only subdued due to the tragic events of 9/11. The political African American groups who felt disenfranchised during the 2000 elections led this. It’s clear that the eyes of the people are focused on the Supreme Court and its rulings. The courts therefore cannot be complacent and must rule separate and independent of the other braches of U.S. government.

Of course there is the idea of constitutional amendment to correct the growing power of the courts. But are we free enough ideologically today to really conduct this change without adverse affect. With the political system we have today which has evolved so much since the framers created the constitution, the results of a new amendment could be equally dangerous as good. Dare we take the chance or should we learn to realign what we already have and know.