Who’s to Judge

….well someone has to….I knew they threw that third branch in there for some reason…

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

~ Alexander Hamilton, The Federalist Papers No. 78, 14 June 1788


The very nature of the Supreme Court has made it both beloved and disdained, oftentimes by the same people.  It is the bulwark of the Constitution, and its rulings are the ultimate responses to questions about the fundamental laws that govern our land.  And of all of our government’s branches, it is actually the one whose role and function has changed the least since the days of the Founding Fathers.  Yet, there seems to be no end to the whining from either side about every last major decision they reach.  The Founders intended the Court to be the final judge, and judge it does.  Of all the branches of our government, they have the most arduous of duties – to take the long view – they have to look to our past as well as to our future as a nation with every decision.  They have to understand the “tenor” of the Constitution and apply it to a nation and a citizenry that has vastly evolved from the one it was first written for.  No easy task.  And as we have frequently seen, every justice doesn’t always agree on what the right course is.  Decisions are frequently split.  Should that bother us?  I would hope not, because it means our justices are doing their jobs.  They are looking at our laws and genuinely giving each case their utmost in thought and consideration, and then each coming to a decision.  A Court full of justices who always ruled the same way would be much more troubling, because it would mean the end of the type of of governance we hold dear.  One doesn’t have to agree with every decision the Supreme Court makes to know that the Court maintains its independence and its authority to this day.

The Court’s independence comes from its life terms, a feature the Founders very deliberately built into the Constitution.  Regardless of how or when they are appointed, they cannot be un-appointed, which is why there is so much political bickering over nominations.  But complaints about “activist” judges are fundamentally flawed anyways.   Regardless of whether they uphold a law or overturn it, the entire Court is inherently reactive rather than active.  The Supreme Court cannot even take up an issue until it has already worked its way up through the smaller courts.  Even then, their mandate is limited to ruling on the matter at hand, and they are reliant on the federal branch to enforce their rulings.  The justices don’t just get to go off and reinterpret whatever laws they like on a whim.  They are being asked by whomever has brought the case in the first place to take the final look at whether something is truly in line with our fundamental laws.  Sometimes their rulings can certainly have broad effects, but oftentimes, they address very narrow issues as well.  The point being, it is the entire purpose of the Court to decide on these questions.  The Founding Fathers very intentionally gave the Court the final authority as the arbiter of the will of the Constitution, and therefore of the people themselves.  Does this mean the Supreme Court is infallible?  No, they have made mistakes, reversed previous Courts judgments, and all-in-all had great failures of judgement in proportion to their great successes.  But that is how it should be.  And when we seek out their judgment, we shouldn’t be so surprised that we don’t always receive the kind of ruling we expect, regardless of what side of an issue we are on.  Because the truth is: when one asks for judgement, judgement will be given.


Res Publica

Documentation without Representation:

Alexander Hamilton, The Federalist Papers No. 78, 14 June 1788 (emphasis added by me)


Electronic Text Courtesy of The Avalon Project at Yale Law School

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