TCS Daily


Must an Independent Judiciary be a Unilateral Judiciary?

By Carroll Andrew - April 15, 2005 12:00 AM

Two recent cases, taken together, reveal a systemic problem with the American court system. In Roper v. Simmons, a juvenile death penalty case, the court asserted a right to base it decisions on sources other than law, appealing to both international law and an even murkier "evolving standard of decency". The effect is to deny the other branches of government the ability to check the power of the courts by establishing rules before the courts enter a situation. In the Terri Schiavo case, the federal judiciary cited the precedent of Plaut v. Spendthrift Farm, which expressly denies the right of the other branches of government to check the power of the courts after they have made a decision.

When there is no check on the power of the courts at either the beginning or the end of the process, the result is a single branch of government that can unilaterally limit the scope of individual rights, a potentially dangerous concentration of power within a single set of hands. As an example, consider the following hypothetical situation...

The year is 2008. Senator John Smith is running for President. Smith has a record of opposition to the death penalty, though he currently claims to favor it. Several bloggers who have endorsed Smith's opponent post articles criticizing Smith's inconsistency. A pro-death penalty, "law-and-order" issue advocacy group links to the blogs on its website.

Candidate Smith files a complaint against the issue advocacy group. He charges that the advocacy group has been coordinating expenditures with Smith's opponent. The suit alleges that the blogging is part of an in-kind contribution subject to campaign finance limits. E-mails between the advocacy group and the bloggers are cited as evidence of a network of coordination. Because endorsements of Smith's opponent are readily accessible from the websites of the bloggers, the Federal Election Commission finds their collective body of blog-work to be an endorsement of Smith's opponent, outside of the protection of pure "issue" messages, and subject to campaign finance regulations.

The case is appealed to the courts. The courts uphold the FEC decision, but go even further. They find that speech advocating the death penalty is subject to extra government scrutiny. The ruling is based on Article 30 of the Universal Declaration on Human Rights,

        Nothing in this Declaration may be interpreted as implying for any State, 
        group or person any right to engage in any activity or to perform any act 
        aimed at the destruction of any of the rights and freedoms set forth herein,

and Article 5(1) of the International Covenant on Civil and Political Rights,

        Nothing in the present Covenant may be interpreted as implying for any 
        State, group or person any right to engage in any activity or perform 
        any act aimed at the destruction of any of the rights and freedoms 
        recognized herein or at their limitation to a greater extent than is provided 
        for in the present Covenant.

The court notes that these articles require a balance between freedom of expression and the purpose of that expression. If the purpose is to effect change that may limit other rights, then the speech is not protected. The court determines that endorsement of a Presidential candidate based on pro-death penalty views is not consistent with the evolving standard of decency cited in Roper v. Simmons that continues to broaden the right to life enumerated in Article 3 of the UDHR, and Article 6(1) of the ICCPR.

The court orders the bloggers to remove existing postings and cease making further postings that endorse opponents of candidate Smith based on pro-death penalty views. After a public outcry, Congress comes together and passes a law expressly granting bloggers all protections that journalists have, and generally affirming the right to free speech. The President signs the bill into law.

A suit is filed to prevent the new law from taking effect. The judgment in the suit reaffirms the precedent set in Plaut v. Spendthrift Farm,

        The record of history shows that the Framers crafted this charter of the 
        judicial department with an expressed understanding that it gives the Federal 
        Judiciary the power, not merely to rule on cases, but to decide them, 
        subject to review only by superior courts in the Article III hierarchy
        ....By retroactively commanding the federal courts to reopen final judgments, 
        Congress has violated this fundamental principle....The prohibition is violated 
        when an individual final judgment is legislatively rescinded for even the 
        very best of reasons, such as the legislature's genuine conviction (supported 
        by all the law professors in the land) that the judgment was wrong.

        The court finds Congress' attempt to reverse the limitations imposed 
        on the bloggers' rights to be an unconstitutional violation of the principle 
        of separation of powers. Though the new law may affect future cases, the 
        court holds that it cannot be used to change the outcome in this case, and 
        upholds its own ban on pro-death penalty blogging.

TCS presents this example not as a polemic, but as a question. No single step in this hypothetical sequence of events requires that the courts assume any more power than they have already assumed for themselves. The legal reasoning may not be perfect, but legal reasoning does not have to be perfect in order for it to acquire the force of law. It needs only be accepted by the set of judges deciding a particular case.

Is there a point where the other branches of government can step in to broaden the scope of individual rights once the courts have decided to limit them? Or are the rights of individuals in America now subject to limitation by a single branch of government?

The author is a frequent TCS contributor.

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