Judicial Independence

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I love Ramesh Ponnuru, senior editor for National Review. The guy writes with impeccable logic, slicing through the B.S. to get to the heart of the matter.

In Independence Day, he writes about the notion of judicial independence. Unfortunately, you can't read the whole thing unless you're a subscriber, but he makes this important point:

The first thing to note about this kind of judicial independence is that it should constrain judges at least as much as anyone else. If judges themselves allow their political preferences to affect their reading of (or worse, to trump) the law, then they squander what is valuable about judicial independence. Likewise if they place the institutional interests of their courts ahead of the law, effectively making themselves parties to the case. If these things have happened on a wide scale, as we and many other conservatives (and even some liberals) believe, then they have happened at a cost to judicial independence -- and it makes little sense to accuse anyone who wants to do something about it of opposing judicial independence.


Chief Justice Rehnquist gives a more plausible answer: The only checks we have used against the courts, historically, are the appointment and amendment processes. Congress has not impeached judges for their decisions, and has not restricted the courts'jurisdiction over constitutional matters. This traditionalist answer, however, fails to reckon with the possibility that the courts' arrogation of power over the last few decades has been unprecedented. If that is true, as many conservatives believe (sometimes as a result of reading Rehnquist's dissenting opinions), then the force of the traditionalist argument dissipates. New challenges sometimes call for new responses.

Ponnuru, and his coauthor Robert P. George, then go on to back up the argument that the courts have been acting in an unprecedented fashion, in a way at odds with the whole concept of judicial independence. Though that part of the piece is not entirely satisfactory, it doesn't really have to be, as the main point is that the "encroachments" offered by members of Congress, if they are unprecedented, are justified if the courts are acting in an unprecedented manner as well. Whether the courts are acting in such a manner is up for debate; the logic behind the reasonableness of acting in such a situation is, given the arguments in this piece, far less so.

Good stuff. slashdot.org

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