14 Oct Judges Do Justice
Like a lost election being “stolen,” court legitimacy sadly seems to depend on the result of the case. When I have been tried and convicted, the defendant says, the court was “crooked” and the case “rigged.” But when the Supreme Court issues rulings one side doesn’t like, the majority of the justices are just as quickly called “activist,” “corrupt,” and “partisan.”
This excuse-making and political posturing is bad for our country.
Saving Faith
To be sure, I lost cases as a lawyer and was astonished by those results sometimes. To be equally sure, my colleagues, clients, and I were tempted at times to doubt the correctness of the result. We never had any basis, however, to question the legitimacy of the court process or a judge’s favoritism (with the possible exception of a federal judge in Texas who snidely pointed out to the Waco jury that my associate and I were “the only Yankees in the room”).
Questioning the legitimacy of courts is rampant today. Let’s start with no less than the President of the United States. In trying to discredit the decision this year on presidential immunity, Joe Biden said the Supreme Court is “mired in a crisis of ethics” and that its decisions were “dangerous and extreme.” Not to be outdone, Donald Trump has called Supreme Court Justices “biased,” the Chief Justice “an absolute disaster,” and high-court decisions against him “horrible and politically charged.” The trial judges in his criminal cases? They are “running a kangaroo court,” “conflicted,” and so forth, Mr. Trump says.
In part because of such criticisms, faith in our courts has fallen dramatically. Surveys reveal that the share of Americans who trust judges fell from 75 percent to 49 percent between 2000 and 2023. This is a problem.
Look at the cases the Supreme Court alone has on its docket in the term that started last week. Topics include the death penalty, ghost guns, transgender rights, and pornography. Moreover, there is a strong likelihood that challenges will be made to election results in one or more states, and that these cases will end up being decided by the nine SCOTUS justices.
For our country to move forward in a unified fashion this fall, we cannot have half the population thinking they were cheated by the judges who make these decisions. We particularly need any and all unhappy voters to realize the opportunity to vote was upheld, their ballots were counted, and the people spoke. When the courts have ruled on any election challenges, people must accept that the judiciary has the final say, and its outcomes are by definition just.
This is the importance of faith in justice. We must preserve that faith.
Example: Presidential Immunity
Last term, the Supreme Court decided a presidential immunity appeal, as you may have heard. Donald Trump won a decision in that case, which helped him, at least temporarily. If all you know regarding that decision is what the media and politicians have said about it, you likely are confused at best and crushed at worst.
The thing about which you may be confused or crushed is how the Supreme Court could say that Mr. Trump is above the law. It didn’t. He’s not. What the decision actually holds is that a president is immune from prosecution for “officials acts” taken while in office. The president, then, can be prosecuted and found guilty for acts taken that are personal or otherwise not within his or her job duties, or which were taken before or after the presidential term. Therefore, Donald Trump remains exposed to criminal punishment for many of his actions, as described in the special prosecutor’s evidentiary filing two weeks ago.
If you can read the words “Trump won” and yet still think logically and dispassionately, you may realize that limited presidential immunity is a good, necessary thing. First, if Mr. Trump wins the coming election, Joe Biden himself likely will be a major beneficiary of the immunity ruling, as Trump will not be able to order the Justice Department to “go after” Biden for what he did or did not do in the White House. (If you don’t think Trump would do that, you haven’t been listening to him.) Also, if Kamala Harris wins in 2024, eventually she could be another beneficiary of the limited immunity the recent decision provides.
Despite the presidential immunity ruling or other decisions, we do not need to expand the U.S. Supreme Court. We do not need term limits for federal judges or justices. We do not need another branch of government to write a code of conduct for the judiciary branch. In short, we do not need the “no one is above the law” constitutional amendment proposed by President Biden. No one is.
Written by Quentin R. Wittrock, founder of Principle Based Politics.
Look for his posts each week, as this blog will explore and promote the idea of principle in politics, both as to individual elected leaders and our federal government as an institution.
Principle Based Politics does not endorse or support any particular political candidate or party.
James Loerts
Posted at 12:53h, 15 OctoberLooking at every court decision through a political lens has become a problem that is not good for our country. To be honest though, a handful of rogue federal judges, on both sides, have not helped the matter. It would be nice, however, if we all grew up a little bit. Not getting our way does not mean judges are biased.
Darrin
Posted at 18:14h, 15 OctoberStrong post. While Trump could potentially go after Biden as you suggest, he explicitly opted not to pursue charges against Hillary after his election in 2016, stating it would be bad for the country.
I don’t share your view that people must accept that the judiciary has the final say as that is too broad. There are other branches in a constant context to determine who has such a say, although there are areas where the judiciary clearly has the last word in addressing a controversy. Even this “say” is subject to the will of the people through the elected branches and may be overruled.
More directly, however, I disagree that judicial decisions are “by definition” just. I posit that the judiciary itself has an obligation to ensure its actions and those of individual judges and justices are above reproach both inside and outside the courtroom to maintain a well-defended appearance of propriety and, hence, justness. For instance, when judges make partisan statements (and when they come from partisan, rather than legal, backgrounds) it damages that appearance.
As a proponent of strict constructionism, I believe the farther judges and justices move from applying objective statutory and constitutional language in favor of a preferred result, the more the public has a right to question the impartiality of the judiciary. When the judiciary moves toward what it perceives as the equitable result over the predictable result, it takes power from citizens and their elected branches and loses credibility when denying the accusation that judicial activism has taken place.
Quentin
Posted at 18:33h, 15 OctoberWish I could tell if you meant “strong” like a bad odor may be, or like a well-made effort. Good comment either way.
DKnight
Posted at 18:38h, 15 OctoberIn general, in the every day course of dealing in courts across the country, you are correct, that “judges do justice”. However, remember judges are like the rest of us, they have their opinions, political bias, personal proclivities, etc. Judges can be slanted and sometimes, foolish or even dangerous. As a lawyer like you, I have been in front of some absolutely clueless judges. For example, there are many judges that have no idea how businesses operate. We should always be able to criticize judges and every other arm of government. Being critical of government is crucial to keeping government power in check. Such criticism is not “anti-government”, it is essential, even if the criticism is unwarranted for any specific instance. Beware of inhibiting free speech in any respect. This attitude of restraining criticism of government is unhealthy–and it is used to insulate the government or judges from scrutiny. Judges are less likely to act improperly if they know they are being watched, and subject to valid criticism. We shouldn’t focus too much on words or rhetoric that we find offensive. Sticks and stones break bones, calling judges “activist” or “partisan”, doesn’t.
Quentin
Posted at 18:57h, 15 OctoberRight, but calling courts “kangaroo,” “rigged,” and “corrupt” every time a ruling goes against you is harmful, as it diminishes respect for our government and ultimately for our country. “Clueless” judges are one thing, but calling people “biased” is another.
DKnight
Posted at 03:22h, 16 OctoberI respectfully disagree that using strong language is harmful–we are big boys and girls–we can handle it. Also, there are some clearly biased judges–Judge Merchant in Orange Man NY case was–and is–objectively a dangerous joke–even democrat lawyers agreed. We must be able to call out the bad in the world–without fear–and without being labeled “anti”-anything. But at least we are in general agreement regarding your posting today–which is something. I respect your opinion–I am just less inclined to trust institutions as much as you do. There is too much institutional power in our current world, and it is restricting freedom.