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Political Attacks on the Judiciary: Can Justice Be Done Amid Efforts to Intimidate and Remove Judges From Office for Unpopular Decisions? 72 NEW YORK UNIVERSITY LAW REVIEW 308 (1997)

Abstract

The increasing political attacks on the judiciary by both major political parties and by candidates for judicial office are diminishing the independence of the judiciary and, equally important, the public's confidence in it. Thus, the distinction between fair criticism of judges and intimidation of them is an important one. There is no question that fair criticism plays a critical role in improving the quality of the courts. Every appeal, every petition for rehearing, every dissent is a criticism of a judicial decision. Decisions like Dred Scott v. Sandford, Plessy v. Ferguson, and McCleskey v. Kemp should be criticized. Citizens should ask if these decisions were correct. What does the Constitution require? Should it be amended? If the case involved a matter of statutory interpretation, should Congress respond with legislation? It is equally clear that everyone in the United States has a First Amendment right to be a demagogue and to make irresponsible criticism. But irresponsible criticism which brings about the removal of judges from office or influences their decisions is incompatible with judicial independence and the rule of law. Courts have a duty to protect the rights of minorities-political, racial, ethnic-no matter how unpopular their rulings may be. Legislators or executives may base their decisions on focus groups or public opinion polls, but judges may not. Judges are expected to enforce the law, whether it be the First Amendment freedom of the radical right or the radical left to publish political views which may seem distasteful to some, the right of The New York Times to publish the Pentagon Papers or the right of a suspected child molester to a fair and impartial trial. As Edmund Burke put it, the judiciary is to serve as "safe asylum" during times of crisis. In the United States, courts are to uphold the Bill of Rights regardless of whether the decision is popular at the time. No one has said it better than Justice Jackson: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. This important concept seems to have been forgotten. Indeed, former judge Robert Bork, a self-described strict constructionist, proposed in his book, Slouching Towards Gomorrah, that Congress should be given the power to override Supreme Court decisions. Governor Fob James of Alabama has also expressed the view that the state legislature and governor should be able to override decisions of his state's highest court and, on the federal level, that the President and Congress should simply ignore Supreme Court decisions they "know" to be wrong.

Date of Authorship for this Version

1997

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