Judicial heroes

Attacks on the judiciary from the legislative and executive branches–at both state and federal levels–are up a great deal, these days, it would seem.  In the wake of controversial decisions on various subjects, we hear more and more legislators and state executives threatening highly placed judges with sanctions or impeachment.  Judicial independence in the age of big-money politics is definitely an issue, but this should trouble everyone, quite honestly, because it strikes at the heart of constitutional government and the rule of law.

So what am I talking about?  Well, let’s start with Rep. Louie Gohmert.  Gohmert isn’t conservative.  Gohmert is your classic right-wing nut:  keep government out of my life and shove it into everyone else’s.  He sees radical Muslims around every corner, and he’s convinced that the Aurora movie theater shooter wouldn’t have done his dastardly deeds if he’d just gotten to know Jesus.  So there’s plenty of crazy when it comes to Rep. Gohmert, but for purposes of this post, I’ll focus on his reaction to the U.S. Supreme Court’s ruling in Obergfell v. Hodges, the case that declared laws denying same-sex marriage unconstitutional.  Rep. Gohmert wants Justices Ginsburg and Kagan impeached because they officiated same-sex marriages before the opinion was handed down.  The implication is that a judge is not allowed an opinion on anything until it has been fully briefed–presumably by someone who shares Rep. Gohmert’s Neanderthal considered opinions.  Anything less requires impeachment.  (To his great credit, Chief Justice Roberts has pushed back against opinions like Rep. Gohmert’s in recent years, observing that his colleagues are “jurists of exceptional integrity and experience.”  It is the kind argument against the routine call for recusal that is absolutely necessary.)

But all this didn’t start with Rep. Gohmert.  He’s a symptom, not the disease.  In 2014, the Oklahoma Supreme Court stayed the execution of two convicted murderers, Clayton Lockett and Charles Werner, so that the justices could evaluate the legality of the state’s injection-secrecy law. That’s a law that allows state officials to stop disclosure of basic information about the drugs used in lethal injections.  A trial judge declared the secrecy law unconstitutional, stating “I do not think this is even a close call.”  It’s a major issue because states are scrambling to find new drugs for their lethal injection protocols in the wake of European manufacturers cutting off access.  The stay didn’t go over well with Oklahoma’s governor or its Court of Criminal Appeals.  The governor, Mary Fallin, declared that she would not observe the ruling of the state’s Supreme Court because she felt it was outside the constitutional authority of the court. (Governor Fallin is no stranger to threatening the state constitution to fit her own beliefs.) Nevermind that courts of last appeal have declared the limits of their own jurisdiction since Marbury v. Madison.  The Court of Criminal Appeals simply washed its hands of the whole situation, declaring that it had no jurisdiction to consider the propriety of the state’s lethal injection protocol.  So the governor said the Supreme Court had no jurisdiction, and the Court of Criminal Appeals declared its own lack of jurisdiction. Which means no one had jurisdiction, and Oklahoma was free to do whatever it wanted, which meant a heart attack for Clayton Lockett, fourteen minutes after he was supposedly declared dead from an untested mixture of drugs injected into his system.  The job got done.  Disrespect for the judiciary paid dividends.  Governor Fallin could tell the electorate how tough she was on crime, and it was just some convict who suffered.

The thing that brought all this to mind most recently is what occurred last year in Kansas.  In Kansas, there has been a recent dust-up between Gov. Sam Brownback and that state’s Supreme Court.  A Kansas trial court issued a ruling holding the state’s method of school financing “beyond any question” unconstitutional because of the disparities in financing.  When the Kansas Supreme Court heard the case, Gov. Brownback took it upon himself to pressure the Court publicly.  Brownback argued that the financing was “the people’s business, done by the people’s house through the wonderfully untidy but open for all to see business of appropriations.” He contrasted this with the “unaccountable, opaque” decision-making of the Kansas Supreme Court.

When the Court affirmed the trial court’s ruling, it found itself defending its own role in the constitutionally mandated process.  Determining whether an act of the legislature is invalid under the people’s constitution is solely the duty of the judiciary, the court wrote.  The legislature and Gov. Brownback responded by stripping the high court of its administrative powers over lower courts and then threatening the funding of the entire court system if any court struck down that decision. Court systems, like everything else, run on money.  This was a threat to the very existence of an entire branch of government.

In late January, the Legislature blinked.  It reversed course and passed a bill reversing the defunding law.  But should it ever have come to this?

Legislatures have the “power of the purse,” and that’s a good thing because legislators are traditionally the closest to the voters.  But power can be abused, and that’s why there are courts.  A court–particularly the highest court in a state–finding that an act of the Legislature is unconstitutional is not a sign of a judiciary run amok, but a sign of a robust judiciary that is fulfilling its constitutional role.  Judges are not supposed to be “yes men.”  We champion an independent judiciary, not just because it seems like a good idea in theory, but because it is an integral part of our Constitutional system at both the state and federal levels.  Judicial independence is fundamental to the individual freedoms we hold so dear.  The Bill of Rights of the Constitution and of every constitution is a fundamentally anti-majoritarian document.  It is what stops the desires of the many from trampling the needs of the few.  When the independence of those who guard those laws is threatened, it is cause for concern for all of us.  You never know when you’ll wind up in the minority.