A Significant Battle, an Ongoing War

Article excerpt

Campaign rhetoric continues to threaten the independence of the courts

Rhetorical attacks on the federal judiciary by contenders for the Republican presidential nomination have been an unfortunate centerpiece of the already tumultuous race for the White House in 2012. The character of the accusations should be familiar to anyone who has paid attention to political discourse on judges and courts. Mainstream judicial rulings that don't comport well with a particular political philosophy are portrayed as "radical," and "out of touch." Judges whose rulings are perceived as unwelcome to any particular individual or group are portrayed as "imperial" and "activist." These labels are applied without regard to the law or logic of their decisions.

Political attacks on the Federal judiciary are as old as the Republic itself, but the latest salvos in the long political war against judges have increased the rhetorical heat to an alarming degree. Proposals by some candidates include the abolition of entire courts, the limitation of their jurisdiction over certain politically sensitive subjects, and the impeachment of judges who issue rulings that displease the President or Congress. One extreme measure would allow for the subpoena of federal judges whose rulings are questioned by Congress, and the arrest of judges who refuse to comply.

Much space has been devoted to analysis suggesting that these proposals would violate the separation of powers so carefully crafted in our Constitution, by undermining the independence of the courts, and subjecting them to the whims of political influence. Pundits from across the political spectrum have decried them as dangerously hyperbolic, going beyond criticism to actively threatening the judiciary in an attempt to gin up political support.

Even critics of the courts have warned that, should one of these anti-court candidates be fortunate enough to win the presidency in November, their proposals would still be very difficult to enact. Presidents can publicly disagree with court rulings, but stripping courts of jurisdiction, imposing term limits, or issuing subpoenas for sitting judges would require the cooperation of Congress. Further, public support for the judiciary remains higher than for the President or legislators, despite decades of increasingly strident anticourt rhetoric.

These proposals have been analyzed by opinion makers and academics, and generally dismissed as dangerous, unconstitutional, and extremely impractical. Supporters of fair and impartial courts, in particular, have devoted considerable time and energy to debunking them. We join the discussion, however, to urge continued vigilance, and caution against allowing the sound and fury of the campaign season to distract from the threats to a robust and independent judiciary.

There are good reasons to expect that our nation's courts will continue to be a target of campaign rhetoric. This term, the Supreme Court will decide several contentious cases, with clear political dimensions. …