Thursday, August 4, 2011

Role of judiciary

The question on the role of judiciary is frequently entertained and analyzed. Some groups uphold the conservative approach that requires judges only to 'interpret' the law, expound on the law, not change it. Others are of the more liberal approach that judges are to 'make law', because the elected officials cannot do the 'right' thing facing their political constituents. The cause of the minorities historically has been advanced by the judiciary.

Two problems with this distinction. First, in one sense, 'interpretation' of the law cannot be really done without some implicit/explicit making, remaking, fashioning of the law. It is an absurdity to even argue that judges should not 'make' law, especially in the background of the American case-law bound system. Statutes are only the skeleton of the 'law', and the cases are the muscles, tissue, organs, etc.

Second, and conversely, there is no longer any real separation of judiciary with legislative or executive bodies. In the recent years in the United States there has been a very prominent erosion of historic boundaries among the three branches of the government at all levels, local, state and federal. Judges now are in the same position as the legislators in that any decision/ruling they make is subject to immediate political consequences/repercussions. The idea of 'checks and balances' and 'separation' of powers that held together the fabric of this country for at least two hundred years has been discarded. Because the judges feel directly accountable to the public for their rulings, they feel compelled to act like legislators, to please their constituents. That translates into an 'inactive' judiciary that will really not take upon doing the 'right' thing even when it is unpopular. So, really the concept of 'judge-made' law is outdated...

An independent judiciary was to serve several goals, one of which was to protect minorities against the 'tyranny of the majority.' It was also to ensure that the Constitution was interpreted independent of political expediency, public whim and caprice... After all, the Constitution is a document that was created for all times and ages, and was not to be pushed back in favor of particularistic interests of either the government or the people. Judges were supposed to guard and watch the Constitution essentially against the greedy encroachments of various human groups, elements, structures, each demanding their own selfish interests.

But of course the Constitution is also a living document, that needs to be placed in the context of the problems that arise in modern times. Interpretation of the Constitution cannot be in the void, without regard to the demands and needs of the society. Because judges are after all human, and products of their society, the interpretation of issues of constitutional dimensions is highly volatile, arbitrary and dependent on many variables, such as personalities, predispositions, political views of judicial officers. Therefore, it does not really make any difference to argue whether judges should be 'active' or not. Either way, they are going to be 'active' whether they choose or not, insofar as they are instrumental in 'expounding' a living document, such as a Constitution. They can be 'active' in perpetuating the status quo, as it is laid down by the legislature and the people, by giving constitutional validity to the status quo. That is a very 'active' role. In the most fundamental sense, after all they are the ones who create the 'case law'.

• It is emphatically the province and duty of the judicial department to say what the law is...If two laws conflict with each other, the courts must decide on the operation of each...This is of the very essence of judicial duty.

o Marbury v. Madison, 1 Cranch, 1317 (1803).

• The people made the Constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will.

o Cohens v. Virginia, 6 Wheaton (19 U.S.) 264, 389 (1821).

• We must never forget that it is a constitution we are expounding.

o 4 Wheaton 316, 407.

• This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.

o 4 Wheaton 316, 415.

• Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

o 4 Wheaton 316, 421.

[Justice John Marshall]