And Justice for Always

American Jurisprudence is on full display this week.  The end of the Supreme Court’s session results in the more controversial case decisions being announced, parsed and debated. While each case has its specific merits for discussion, I’m pondering how the idea of three “separate but equal” branches of government has become one over the others.

The conceptual idea is that the Legislative, Executive and Judicial branches operate in a way that checks and balances against the others so that one branch doesn’t hold disproportionate sway over the other.  It’s a nice idea and I remember learning about it in middle school and being oh so proud to be part of such a smart set up.

The reality, however, is far from the ideal taught to schoolchildren.  The nine Supreme Court justices hold a disproportionate amount of power to the other branches.  And in a largely split Court, major policy decisions come down to one justice.  The Citizen’s United case in 2010 is a good recent example.  In a 5–4 decision, the Court held the First Amendment prohibited the government from restricting independent political expenditures by corporations and unions.

The impact of the decision has been far reaching, most evident in the current billion-dollar battle for the Presidency.  Without getting into the merits or even the political impact of the case – rather let’s look at process:

·       The legislative branch established a law (The “McCain-Feingold Act”)

·       The law was signed by President Bush in November 2002 and took effect January 2003.

·       Citizens United challenged the law (after many others had been fined) and it was eventually overthrown by the U.S. Supreme Court.  It established a new legal precedent and overthrew in 234 years of case history.

So the system worked.  The proper path was followed to determine if the law should stand.  Two-thirds of the branches of Government approved of it.  One third didn’t, and their opinion trumps the others.  Not so equal, and then there’s the ripple effect.

Montana has had a law on its books since 1912 that was overthrown this week by the Court based on its own Citizens United ruling.  So if the Judiciary has the final word – then the three branches aren’t actually all that equal…the folks in the robes trump the President and Congress…which may be the only way to have a democracy work where there is passionate disagreement about issues.

Tradition holds that the justices evaluate the merits of the legal arguments based on rulings that have accrued over the years.  Then they can choose to apply those rulings to the case at hand or not.  Majority rules.  In the case of Brown vs. Brown vs. Board of Education - the justices threw out a precedent from 1896 allowing segregation.  In 2003 the justices threw out sodomy laws in Texas and thirteen states in Lawrence vs. Texas.  There are many decisions that break from the past.

So do I only support bold precedent-shattering decisions in instances where I align with the decision?  The lofty idealist in me says no – the reality is yes.  The lesson then isn’t about whether I like or support a particular judicial opinion, it’s that the Judicial Branch is top dog.  With this week’s rulings on Immigration and Health Care – we might actually see the other branches of government try to tackle those issues again, after the rulings.  But at the end of the day Justice has the final word.