The politics of judicial precedence

political analysis by Dr. Robert Willougby, chair of the political science department at the University of Arkansas at Fort Smith

Editor's note: This commentary is part of a collaboration between the University of Arkansas at Fort Smith and The City Wire to deliver an ongoing series of political-based essays and reports. Dr. Robert Willoughby, who first came to UAFS in 2006, has been head of the department since 2010. He has a doctorate in American history and government from the University of Missouri-Kansas City. Willoughby has a wide range of teaching experiences, ranging from public middle and high school to small, private colleges and state universities. He has also published articles and books and has delivered numerous papers at history conferences.

Opinions, commentary and other essays posted in this space are wholly the view of the author(s). They may not represent the opinion of the owners of The City Wire.

Time and again we read in the news or hear from media reports that a single federal judge or a judicial panel of three or at most five, have taken an issue democratically decided by a majority of voters, and reversed it, stayed it, or declared it unconstitutional citing something called judicial precedence.

And what is judicial precedence? It is the interpretation of the constitution and the nation’s laws based on opinions offered by other judges over the course of time. Many of us beg to ask, “Whose constitution are the judges using to decide what is constitutional and why is their opinion better than a majority vote of the people?” At this time in our political history, conservatives complain the loudest and have given the actions of the federal court system, from the Supreme Court on down a catch phrase: judicial dictatorship.

The word dictatorship in the American political vernacular is a dirty word, which we would be loath to use to describe ourselves or any part of our system of government. Dictatorship only applies to foreign lands, usually third world countries where the people are poor and repressed by some out of control general.

People who have inherited a frame of government, a constitution that offers them the freedom to practice certain democratic principles, such as the right to vote, don’t like the idea that a single person, who was never elected by voters, who remains in power their entire life, has the authority to tell the people, “Sorry, I know you voted, but you got it wrong. In my opinion and the opinion of my few colleagues, you need to do it my way.”

Of course in any society there are people who don’t agree with the majority, so they might be willing to endure a little dictatorship to get what they want. In their case it is not really a dictatorship, but a much kinder catch phrase: judicial activism.

The slippery slope into judicial activism has been long coming and goes all the way back to a landmark case in 1803, Marbury v. Madison. It is a well known case found in every history book, and generally touted as something good for the country. The case established a precedent that allowed the Supreme Court to rule an act of Congress to be unconstitutional.

Why was that considered dangerous, especially for people who believe in a strict construction or interpretation of the Constitution? Examine the content of Article III of the United States Constitution carefully. In the list of jurisdictions granted to the Supreme Court, judicial review of an act of Congress is not listed. The ability of the Supreme Court, at that instance to add a new dimension to its own powers, not specifically in the constitution, to set precedence, meant that every judge since has no obligation to be guided by democratic exercise, by the people or their chosen representatives, but only by the judicial opinions of their peers past and present. When the Supreme Court issues a ruling it is done so in a majority opinion, with separate dissenting opinions.

Otherwise, how can a single federal judge, reverse or stay, a legitimate vote of the majority of people in a state who, for example, vote to prohibit abortions, same sex marriage, or allow concealed firearms, execution of murderers, public exercise of religious beliefs and any number of issues, mostly social conservative issues, that have recently been in the news? Again, the answer is precedence, which in most cases has emanated from the U.S. Supreme Court.

Of course, everyone has a political opinion about any issue, whether you are liberal, moderate or conservative. And despite the founding fathers envisioning judges who would be non-partisan and appointed for life so they could be above the political fray, judges certainly have no less proven to be just as opinionated and polarized as the rest of us. It has always been the case with appointed judges who are nominated by presidents, exactly because of their political persuasion, and approved or not by the Senate which has a like political persuasion.

Some can argue, and thank God that the Supreme Court has seen fit to change the interpretation and literal meaning of the Constitution over time. They have defined rights and liberties the founding fathers never envisioned, through the process of setting new judicial precedence. It was not that the founding fathers were so naive to believe the document they wrote in 1787 would still be strictly constructed 200 years into the future.

And they did take that into account. Read Article VI of the Constitution. It spells out exactly how the document could be periodically updated by the action of the Congress in conjunction with the states or by the states alone. Article VI does not give the judiciary the power to amend the constitution. So the judiciary, to assert its power is left with the only means at their disposal, precedence. And according to Chief Justice of the Supreme Court Charles Evans Hughes, who served from 1930 to 1941, “the Constitution is what the judges say it is.” And so it is even more so today.

Without judicial precedence setting up the power to “legislate from the bench,” would we still be struggling with the rights of the accused and issues like racial segregation? Anyone with even elementary knowledge of history will recall the Supreme Court decision, Brown v. the Board of Education of Topeka, Kan., that ended legal segregation and sent the nation in the direction of racial equality (I say direction because I don’t think we are there yet.) and set a monumental judicial precedence. That decision alone means for many that the Supreme Court and its power must be viewed as a positive. But lest we forget, the 1954 Warren court decision simply reversed an earlier Supreme Court decision, Plessy v. Ferguson, which created the whole “separate but equal” mess in the first place, when the court failed to properly interpret the 14th Amendment in 1896.

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There is an historically valid argument that the founding fathers did not for the most part support, or write into the Constitution the concept of broad-based American democracy – the rule of the great unwashed, common man majority.

So is the Constitution simply an instrument for the various political branches or factions to fight over and interpret as they see fit, regardless of how the majority vote? In a recent 5-3 decision by the Supreme Court on the issue of states granting racial preference (affirmative action) in university admissions, the majority opinion graciously gave the people of a state the right to decide for themselves if they wanted to do so. How that precedent may apply to future decisions on issues of vital interest to states, we can only guess. The same court also allowed public prayer in governmental meetings. And the courts have a history of swinging like a clock pendulum, for a while on the right and then back to the left. Judicial dictatorship can be viewed from both sides of the political spectrum and soon it may be liberals crying “judicial dictatorship.”

It still strikes me, that if Abraham Lincoln’s immortal words were to be repeated today, instead of, “government of the people, by the people, and for the people,” it would have to have the tagline, “government of the people, by the people, and for the people, OR whatever a judge decides regardless of how the people vote.”

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