Sunday, April 17, 2005

Just what might happen if congress controls the court

Since becoming aware of the growing grassroots movement to dismantle our country by holding our independent judiciary accountable to congress I began looking into accusations of judicial activism. I discovered that conservatives hold no monopoly on that phrase. In fact, it seems to be used as often by the left as it is by the right.

This phenomenon seems pretty indicative of the health of our system of checks and balances and the judiciaries role in it. The judiciaries role is to, objectively, weigh legislation against the constitution and decide if it measures up. Now I realize that absolute objectivity is about as attainable as absolute perfection. But to be able to piss off most everyone, sometimes on the same issue, the judiciary as a body has to be doing an admirable job. The selection process (under fire by the political wing of the religious right) ensures that most judges given seats on the higher courts are known for setting aside their personal prejudice and hand down rulings based on the rule of law defined in our constitution. It is not an absolutely perfect system. Life would be awfully dull if we had one. But our independent judiciary is an intregal part of the system we have. Personally I think our system is a quite preferable to the one in say, Iran. Yet if congress manages to "reign in" our judiciary we could conceivably get just that.

Lets imagine for a moment, America with a congress able to overrule the supreme court. The house introduces legislation that would extend the terms of office for our elected officials indefinitely for the duration of a national emergency, say the war on terror. It passes with a simple majority then breezes through the senate to be signed by the president. Of course it ends up in court and when the court rules to the negative the judges are removed/overruled. Soon new legislation is introduced, in the interest of unity in government, that those in the legislature who to often dissent from the majority should be replaced by those who can be more agreeable. Thereafter the U.S. could be molded into a theocracy to rival the wildest ambitions of Kahmenei. The "best" possible outcome of the aforementioned scenario is all out civil war.
I realize this seems an entirely unlikely scenario but it is one of many possibilities if we have an accountable judiciary. And at a time when 78% of highschool students poled believed that journalism should be government approved it doesn't seem nearly as implausible as it would have a decade ago.

The potential for abuse is staggering. The courts are and always have been the last line of defense against tyrannical government. The courts are and always have been the third and arguably the most important check in our system of government. I don't always agree with the courts, no one will always agree with their rulings. If suddenly one group of people were able to agree with the courts it would in fact signal a major breakdown in the system. It would in fact mean that the courts were no longer objective and impartial. So those who would dismantle our better than two hundred year old system need to think long and hard about exactly what that would mean.

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