An Independent Judiciary?

In The Federalist No. 78, Alexander Hamilton wrote, "...There is no liberty , if the power of judging be not separated from the legislative and executive powers'...Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other two." In case you weren't paying attention in American History while you were in high school, Alexander Hamilton was one of the framers of the Constitution, and this statement should give a clear indication that the origianl intent of the Founding Fathers was to establish an independent judiciary.

More recently, Woodrow Wilson wrote that government "...keeps its promises, or does not keep them, in its courts. For the individual, therefore...the struggle for constitutional government is a struggle for good laws, indeed, but also for intelligent, independent, and impartial courts."

In a November 7, 2005 speech before the American Academy of Appellate Lawyers, Sandra Day O'Connor took Representative Tom DeLay and Senator John Cornyn to task for their attacks on the independence of the judiciary, stating:

"We have the power to make the president or Congress really, really angry," O'Connor told the lawyers. "In fact, if we do not make them mad some of the time, we probably aren't doing our jobs. Our effectiveness, therefore, relies on the knowledge that we won't be subject to retaliation for our acts."

An independent judiciary is, therefore, essential to maintaining the Rule of Law and the protection of the freedoms established by the Constitution.

Compare these views of the judiciary with those of Representative Tom DeLay(R-TX), Senator John Cornyn(R-TX) and Representative Tom Feeney(R-FL).

Regarding a death penalty case, Mr. DeLay threatened judges in the case with unspecified retribution, particularly citing Justice Anthony Kennedy for his citing of international law in the rendering of his opinion.

Senator Cornyn made an unwarranted connection between recent courtroom violence and "judicial activism" with his comment

"we seem to have run into a spate of courthouse violence recently in the news, whether the perception in some quarters in some occasions where judges are making political decisions, yet are unaccountable to the public, that it it builds up and builds up and builds up until some people engage in violence."

And Tom Feeney seems to believe that judges who make decision based on foreign precedents should be impeached. The late Chief Justice Rehnquist, however, said that "...a judge's judicial acts may not serve as a basis for impeachment."

There are also those who hold that "judicial activism" serves to undermine the "will of the majority". Nothing could be further from the truth. An independent judiciary serves to protect minorities from the tyranny of the majority. When majority will imposes unconstitutional restrictions upon those in a minority, it is the duty of an independent judiciary to step in and strike down those restirctions. Had the Supreme Court not stepped in and ruled as it did in Brown v. Board of Education, the notion of "separate but equal" would have stood unchallenged. The Supreme Court's decision in this case ran contrary to the "will of the majority", and we are better for it today.

And then, we come to this:

Dear Dr. Dobson,

This is just a short note to express my heartfelt thanks to you and the entire staff of Focus on the Family for your help and support in the past few challenging months. I would also greatly appreciate it if you would convey my appreciation to the good people from all parts of the country who wrote to tell me that they were praying for me and for my family during this period.

As I said when I spoke at my formal investiture at the White House last week, the prayers of so many people from around the country were a palpable and powerful force. As long as I serve on the Supreme Court, I will keep in mind the trust that has been placed in me.

I hope that we will have the opportunity to meet personally at some point in the future. In the meantime, my entire family and I hope that you and the Focus on the Family staff know how much we appreciate all that you have done.

Sincerely Yours,
Samuel Alito

(emphasis mine)

The only trust placed in Justice Alito is the trust that he will exercise his power in an impartial manner, rather than according to the dictates of personal or outside interests when rendering his decisions. His letter to James Dobson seems to indicate that this will not be the case. He already feels beholden to outside interests thus his impartiality is suspect, at best.

The attacks by the more authoritarian elements of the Republican Party represent a grave threat to the independence of the judiciary. In their attempts to limit court jurisdiction, appoint only party ideologues to the bench, and threaten the removal of those judges with the temerity to defy the Republican right-wing threaten the very rule of law in this country. This undermining of the rule of law is but the begining of a slide down the slippery slope towards fascism, totalitarianism and the death of the Republic.