Judicial independence

  • February 14, 2011
    Guest Post

    By Martha F. Davis, Associate Dean for Clinical and Experiential Education and Faculty Director of the Program on Human Rights and Global Economy, Northeastern University School of Law. Davis is also co-author of the recent ACS Issue Brief, "Oklahoma State Question 755 and an Analysis of Anti-International Law Initiatives."


    Last November, Oklahoma voters approved an amendment to their state constitution that would bar state judges from considering international and foreign law, including Shariah Law.

    Quickly enjoined by a federal district court because it violates the first amendment, the electoral success of Oklahoma's provision has nevertheless triggered a wave of copy-cat proposals in states across the country, from Arkansas to Wyoming.

    Since citations of Shariah law and international law are hardly rampant in state courts - indeed, no Oklahoma court has ever relied on Shariah law - legislators pursuing these measures are either deliberately wasting valuable legislative time or they have some other purpose.

    One possibility is that these proposals are simply veiled attacks on the judiciary. Certainly, by associating state court judges with Shariah law and international law, they engage in a post-9/11 form of red-baiting: the measures paint a picture of state judges who are both unprincipled and disloyal to the U.S., favoring international litigants and supporting terrorists through domestic enforcement of Shariah law. Lawyers and the educated public should know that it's an absurd picture in light of the extensive vetting given state judges before they take office; whatever their faults, none of these judges are foreign agents and terrorist sympathizers - and if they were, they would surely be engaged in activities far less obvious than citing Shariah law in a few common law cases.

    Still, this broadside attack will inevitably have a chilling effect on state court judges, perhaps discouraging them from even traveling abroad and engaging in cross-border dialogue with foreign judges lest they risk accusations of "considering" foreign legal systems in their decisions. It is through this "chill" that proponents of these measures hope to reinforce notions of American exceptionalism, i.e., the idea that U.S. courts have nothing to learn from their international counterparts.

  • January 24, 2011
    In advance of Rep. Michele Bachmann's first "Conservative Constitutional Seminar" today to be led by Supreme Court Justice Antonin Scalia, the American Constitution Society has offered its cadre of constitutional experts as a resource to Congress, suggesting in letters delivered to Bachmann and House Speaker John Boehner Friday that ACS experts' "insight and understanding about all aspects of the Constitution" would help "broaden and enrich the discussion."

    In her letter to Bachmann, ACS Executive Director Caroline Fredrickson recognized the planned Constitution classes as an important opportunity "to ensure that Members of Congress and all Americans are familiar with the U.S. Constitution in its entirety."

    She noted, however, that the classes have been termed "Conservative Constitutional Seminars," "suggesting that you do not intend to provide members of Congress with a comprehensive understanding of the Constitution, but instead will offer an interpretive approach that yields results consistent with the political views of Tea Party Caucus members who are organizing the seminars."

    Several legal commentators have questioned the propriety of Scalia's participation in a closed-door Tea Party Caucus-hosted event.

    George Washington University law professor Jonathan Turley, who wrote a column in The Washington Post criticizing Scalia's appearance, told the Minneapolis Star Tribune that Scalia's participation in such an event "suggests an alliance between a conservative justice and a conservative member of Congress."

    Such a private seminar before legislators presents the opportunity for improper influence by Members of Congress who have interests in a host of cases coming before the court, adds Richard Painter, former Chief Ethics Lawyer for President George W. Bush.

    "A lot of what the Supreme Court does is decide whether what Congress does is constitutional," Painter told the Star Tribune, noting that Bachmann is one of 63 House members who are filing a brief in support of the Florida lawsuit challenging the health care reform law.

    A written statement to the Star Tribune from Supreme Court spokeswoman Kathy Arberg about Scalia's participation in the class "referred to the event as a ‘constitutional seminar,' leaving out the qualifier ‘conservative' used by Bachmann's office," the newspaper notes.

    In her letters to Boehner and Bachmann Friday, Fredrickson offered to expand the discussion by making available ACS experts to participate in these seminars, or to provide other ACS resources.

    "You may recall that Speaker Boehner, in his memo, ‘New Constitutional Authority Requirement for Legislation,' included ACS as a resource on constitutional issues," Fredrickson wrote. She encouraged both Boehner and Bachmann to take full advantage of the resources they had appropriately recommended to their fellow legislators.

    The letter to Bachmann is available here, and the letter to Boehner is here.

  • December 8, 2010
    In the long-running debate over the role of the judiciary, which inevitably includes talk of "judicial activism," Stanford Law School Professor Pamela S. Karlan (pictured) says argument should center on finding the right answers to constitutional questions "and the real meaning of fidelity to the most important constitutional principles: liberty, equality, and opportunity for all."

    Judicial activism has been tossed about for ages, and essentially is employed to deride court decisions with which one disagrees, Karlan, the Kenneth Harle Montgomery Professor of Public Interest Law at Stanford, writes in a piece for the Boston Review.

    For example, conservatives have long tarred the Warren Court as activist. But many of the Court's decisions were not aimed at undercutting or invalidating acts of Congress. Instead, as Karlan writes, the Warren Court's opinions were directed at southern states' "adherence to Jim Crow; Connecticut's refusal to allow married couples to use contraceptives; Florida's refusal to provide lawyers to indigent defendants - that departed from a national consensus about constitutional guarantees of liberty and due process."

    And Karlan contrasts the Warren Court's actions with the Roberts Court, "which has struck down more acts of Congress per year than any other Courts in our history. And the most trigger-happy justices have been conservatives."

    Karlan continues:

    The question is not whether federal judges should strike down popularly enacted policies, but when.

    The consequences of bold judicial action can be awful. In Dred Scott, for example, the Court declared that black people could never be considered citizens and struck down Congress's ban on slavery north of the 36th parallel as an unconstitutional denial of slaveholders' property rights. This was one of the lowest points in the Court's history. That said, some of the Court's greatest triumphs involved bold intervention: ‘one person, one vote,' now a bedrock constitutional principle, was judicially imposed on the nation less than 50 years ago by a set of decisions rightly called the Reapportionment Revolution. And some of the Court's greatest mistakes came when it showed timidity. Consider the turn-of-the-century decisions in Plessy v. Ferguson and Giles v. Harris, in which the Court's passivity before, respectively, Louisiana's segregation ordinance and Alabama's disenfranchisement statute gave the green light to Jim Crow laws. To riff on Barry Goldwater, vigor in the protection of constitutional rights is no vice; restraint in the face of constitutional violations is no virtue.

    Karlan is the co-author of Keeping Faith with the Constitution, which provides an accessible examination of methods for interpreting the nation's founding document. During the 2010 ACS National Convention, Karlan discussed the important role courts play in protecting and advancing constitutional values. Video of her comments is available here.

  • December 7, 2010
    Guest Post

    By Ian Bartrum, Professor of Law, Drake University Law School
    The results of the judicial elections held here in Iowa last month were, simply put, disappointing. Our Supreme Court (pictured), and our state, lost three extremely talented, highly dedicated public servants -- Justices who have served Iowans very, very well for a number of years. Iowa, like many states, has adopted a version of the Missouri Plan of merit-based judicial selection, and, as part of the plan, the Justices of the Supreme Court appear periodically on the statewide ballot for a retention vote. This year, that vote was held in the shadow of the Court's controversial opinion in Varnum v. Brien, in which the Justices unanimously struck down the state's ban on same-sex marriage. A coalition of socially conservative Iowans, under the loose leadership of former high school principal Bob Vander Plaats, mounted a vigorous campaign to oust those Justices that happened to be up for retention. With the help of a tremendous influx of out of state money, Vander Plaats's campaign succeeded, and we now await the appointment of three new Justices.

    Recently, the American Constitution Society -- along with the Drake Constitutional Law Center, the American Civil Liberties Union of Iowa, and GLBT advocacy group OneIowa -- sponsored a panel discussion on the election and its lessons at the Embassy Club in downtown Des Moines. I moderated a group that included Iowa Supreme Court Justice David Wiggins (in the first public appearance by any Justice since the election), Ben Stone of the ACLU, and Troy Price of OneIowa. Partly owing to the Justice's appearance, we had quite a large turnout and a fair amount of media attention. Two television stations, public radio, and all the local papers were in attendance-and, as the event happened to coincide with the Justices announcing they had picked a new interim Chief Justice, we managed to get lead billing in a number of outlets.

    Justice Wiggins spoke first and expressed heartfelt disappointment over the loss of his colleagues. He emphasized, however, that he had lost faith in neither the Merit Selection system, nor in Iowans' ability to understand and vote on important issues. "It is what it is," he said, conjuring up his best Bill Belichick impersonation, "Now we have to move on." He did say that, in his nearly thirty years in the Iowa Bar, the judicial nominating commission and the Governor have always "picked the very best person for the job." Though he was clearly disappointed with results of the election, he also made it clear that he did not think the system was broken.

  • November 4, 2010

    In a "historic upset," the three justices in Iowa up for retention elections were voted out of their seats following a well-funded campaign to remove the justices because of their decision to allow same-sex marriage.

    The vote marked the first time a judge has lost a retention election in Iowa since the retention system was implemented in 1962, The DesMoines Register reports. In the retention system, judges who were initially appointed are subject to an up-or-down vote with no opponent.

    "What is so disturbing about this is that it really might cause judges in the future to be less willing to protect minorities out of fear that they might be voted out of office," University of California, Irvine, School of Law Dean Erwin Chemerinsky, told The New York Times. "Something like this really does chill other judges."

    Conservative groups in 16 states launched similar campaigns against judges, spending more on retention elections this year than was spent in the past decade, but Iowa was the only state in which the justices lost their retention election, The New York Times reports.