Thomas Patterson

Courtesy photo

When the Supreme Court was debating the landmark Dobbs abortion case, Senate Majority Leader Chuck Schumer shouted threats (“you will reap the whirlwind…”) at them from the courthouse steps. Thus the last doubt was obliterated that the unquestioned authority of the court was under serious attack.

An independent judiciary is the key to maintaining our constitutional republic. It is the reckoning mechanism which keeps us on track, muting the potential excesses of popular democracy. Americans once understood this and valued our judiciary, even when it sometimes worked against their individual interests.

But the times, they are a’changin. Americans have now divided into warring classes who believe that in the pursuit of power and short-term goals, a conscientious judiciary is often in the way.

At least until recently, school children were taught that our founders, in order to dilute the power of centralized government, created three branches. The legislative makes the laws, the executive branch enforces the laws and the judiciary ensures that laws are enforced in accordance with statutes and the Constitution.

In the 1930s, Franklin Roosevelt clashed with the Supreme Court when their rulings thwarted his plans to assert federal control over wide swaths of the American economy. The Justices could not find in the Constitution’s list of enumerated powers any which authorized the New Deal legislative barrage.

They were right but Roosevelt’s response was to propose “packing the court“, expanding the number of Justices and increasing his power. Roosevelt’s view of the court as an obstacle rather than a necessary guard rail shocked many Americans of the day. The plan eventually failed, although most of the New Deal was enacted anyway.

Yet the status of the judiciary branch in our federal system is showing deterioration today. Leftist ideologues conduct protests of court decisions in front of Justices’ residences when they render unpopular decisions. That’s clearly contrary to federal law yet they suffer no repercussions. The Biden Department of Justice simply ignores them.

Justices are personally harassed by activists. Angry partisans confront them and their families in restaurants and public spaces. The Justices, particularly those of the pro-Constitution persuasion, are faced with spurious charges of ethical violations and demands for recusal. That’s especially ironic in the case of Justice Clarence Thomas, who has a well-deserved reputation for willingness to vote against his own political positions.

The Arizona Supreme Court also passed down a controversial abortion decision, ruling that the Arizona legislature, following the reversal of Roe, had effectively reinstated a restrictive Civil War era law. In response, a special interest group known as “ Vote Them Out” is attempting to remove justices Clint Bolick and Kathryn King for failing to support their pro-abortion policy agenda

In Arizona, Supreme Court Justices and most lower court judges are not elected but appointed and then undergo periodic retention elections which are intended to weed out incompetent or corrupt judges. Although few judges are not retained, the system works to depoliticize the judicial selection process and give voters input into keeping judges.

It is this retention system itself which Vote Them Out is attacking by forcing Bolick and King to in effect run for their own seats in a political style campaign. There are no credible arguments that either Justice is incompetent or corrupt or that they didn’t provide constitutional authority for their rulings. The issue, again, is simply that their decision was unpopular, at least with Vote Them Out.

As Justice Bolick pointed out in a Arizona Republic op-ed, judges in a merit system are handicapped in a politics based election. They can’t personally raise funds or seek endorsements. They have strict ethical limits on what they can discuss. Their opponents have no such restraints.

It’s telling that justices at all levels are commonly referred to as “liberal” or “conservative”. Such political labels should only matter if justices are policymakers, which they are not. The critical descriptor which matters for justices is “pro-Constitution” versus “pro-some interest group’s opinion”.

Americans seem to have little regard for the values and institutions which are the foundations of our own national greatness. Our independent judiciary distinguishes us from corrupt autocracies everywhere and throughout time. We disrespect it at our own peril.