Federalist Paper #78, written by Alexander Hamilton, James Madison, and John Jay, said the need for an “independent judiciary” was “designed to be an intermediate body between the people and their legislature.”
The primary responsibility of the judiciary then is to interpret the Constitution—the core of the nation’s Rule of Law—with independence and apply any law passed by a legislative body equally.
Essentially put, that means that judiciary must place the four core values of the Rule of Law over all other considerations. Those values are:
- All laws must be publicly promulgated,
- All laws must be equally enforced,
- All laws must be independently adjudicated, and
- All laws must be consistent with human rights principles.
Today these four core values are, more often than not, routinely ignored in the face of judicial expediency or political considerations.
Federal and state judiciaries, led by the U.S. Supreme Court, have become politicized institutions as much as state legislative bodies and the U.S. Congress. Thus, the judiciary is no longer that “intermediate body” between the people and politicized legislative decision-making.
In courtrooms each day throughout this nation, the Rule of Law is determined not by constitutional principles but rather by political considerations of the moment.
In a March 4, 2023 HuffPost article, Paul Blumenthal underscored this assertion by pointing out that the Supreme Court’s conservatives justices during recent oral arguments in a case brought by two individuals backed by the politically conservative Job Creators Network Foundation challenging President Joe Biden student loan forgiveness plan talked more about the irrelevant issue of “fairness” than Rule of Law issues, like statutory interpretations and their applications.
For example, Chief Justice John Roberts set the tone of the court’s oral arguments by saying, “Since we’re dealing in a case with individual borrowers or would-be borrowers, I think it’s appropriate to consider some of the fairness arguments.”
Here’s where the “fairness” issue in this context was politicized:
The bulk of the student debt forgiveness under the Biden plan would mostly benefit black and other minority groups. This plan approach offends the white, Republican political base that finds it “unfair” that their children and grandchildren paid their student tuition fees while poor children will have debt-obligation tuition fees forgiven.
Put simply, while white students had to pay for their college educations, black students would in effect get a “free” college education.
That is the core socio-political issue the politically conservative justices focused on, not the core constitutional issue of whether the executive branch had the authority to implement a plan not approved by Congress.
It is undeniable that politics, not the Constitution, prompted Chief Justice Roberts to decide it was “appropriate” to comingle political and constitutional issues thereby automatically putting the viability of the Rule of Law at risk—an unnecessary risk, we might add.
Under Chief Justice Roberts’ leadership, the Supreme Court—once considered the most trusted of our three branches of government—has lost the trust of the average American as the “independent judiciary” it was created to be.
In a September 2, 2020 opinion piece for Roll Call, former Congresswoman Jill Long Thompson had this to say about the high court:
“When our Founding Fathers wrote the Constitution, they created a broad governing structure and process — with power balanced among three equal branches — that established the parameters for adopting and executing public policy. What they created is integral to building public trust.
“Over the years, the public has often placed greater trust in the judiciary than in the legislative and executive branches of government. But in recent years, Gallup polls have found that only about half of Americans approve of the way the Supreme Court is handling its job. In an Annenberg survey from last fall, more than half the respondents said that while they trusted the court, they believed it was too political. And we all know that the process of appointing justices can be much politicized.”
At the end of 2021 in the court’s annual report, Chief Justice Robert stressed that the court should protect its independence by insulating its decision-making process from “inappropriate outside influences.”
At that very moment only 18 percent of Americans believed the Roberts court was doing a good job at maintaining its independence, according to the Brookings Institute.
In the wake of one its most poorly drafted opinions in the court’s history—the Dobbs decision last year that overturned the Roe v. Wade precedent—just 48 percent of Americans had a favorable opinion of the court; a 70 percent drop since 2020.
The court’s dismal showing in the arena of public opinion is not surprising given the behavior of the justices, including the chief justice, in the “Roberts era.”
Justices have leaked opinions prior to publication to family, friends and political cohorts; at least one justice has consistently lent credence to the insurrectionist “voter fraud” conspiracies advocated by his wife; justices have routinely heard and decided cases in which they have stock or money interests; and the justices do not have a “code of ethics” by which they must abide.
The high court justices are above accountability. They answer to no one, not even their fellow justices. That’s why it is so easy—and for some, comfortable—to either engage in judicial decision-making or espouse political views in public forums that that not only legitimize but advocate the current assaults on democracy in this country.
Just as the court reconvened for the current session this past October, The Nation on October 5, 2022 led with a story appropriately titled, “The Supreme Court’s Majority Reconvenes Its Assault on Democracy.”
The charge is more than justified.
Over the past decade conservative justices on the court have gutted the Voting Rights Act; endorsed state voting prohibitions that either deny or curtail minority voters; upheld conservative gerrymandering in Republican states designed to reduce black voter participation and increase white voter participation; declared money is speech; and gutted campaign finance laws to advantage of political conservatives—all of which undermine basic democratic principles of government.
These are difficult times in which this nation finds itself. The historical safeguard for our democracy from an overreaching executive branch and a politicized legislative branch has been an independent judiciary.
That safeguard has weakened significantly, and some argue no longer exists.
The Constitution is now viewed, especially in the Supreme Court, through a political lens rather than a Rule of Law lens.
Only time will tell whether this nation has the moral fortitude to save itself from divisive politics now tearing its democratic seams apart.