The Right View of Judges
January 3, 2012
Newt Gingrich’s campaign critique of the judiciary has elicited much rending of garments among the liberal elite – but also a surprisingly insightful editorial from the Boston Globe that serves as a good starting point for understanding the proper role of the judiciary in American democracy and the frustration many of us feel about courts that have become too isolated, insulated and arrogant. Like Gingrich, the Globe takes on the “now entrenched presumption that once the court has decided a constitutional question, no power on earth short of a constitutional amendment – or a later reversal by the court itself – can alter that decision.”
“But judges are not divine and their opinions are not holy writ. The judiciary intended to be a co-equal branch of government, not a paramount one. If the Supreme Court wrongly decides a constitutional case, nothing obliges Congress or the president – or the states or the people, for that matter – to simply bow and accept it.”
Judges, the Globe rightly points out, “are no more immune to the lure of power than anybody else, and their assertion of judicial supremacy … has won them an extraordinary degree of clout and authority.” The elected branches of government “have an obligation to check and balance the judiciary” because:
“… the heart and soul of American democracy is that power derives from the consent of the governed, and that no branch of government – executive, legislative, or judicial – rules by unchallenged fiat.”
The Globe’s level-headed, constitutionally-grounded analysis applies to both federal judges and state judges. It’s also why “merit” selection – which produces judges who are unaccountable and rule by “unchallenged fiat” – is under fire in so many states. If Newt Gingrich’s critique of the judiciary prompts more Americans to stop viewing judges as God-like Olympians in robes and more like public servants in need of strong oversight, he will have made a healthy contribution to the public discourse that will far outlive this presidential cycle.