Elena Kagan has joined the highest court in the land and with that, for the first time in its 221-year history, three women will serve on the Supreme Court. She joins Ruth Bader Ginsburg, who was appointed by President Clinton and Sonia Sotomayor, another Obama appointment.
But I don’t really want to talk about Kagan, her qualifications or the nomination battle she went through. I’m also not really going to talk about what her sitting on the bench could mean for upcoming hearings. She’s a moderate and she’s not really expected to shake things up dramatically. No, no. I’d like to go back to eighth grade civics for this blog entry. I feel like a lot of people don’t understand the third branch of government. They seem to think it’s composed of crazed “activist judges.” For whatever reason, many right-wing politicians (looking at you, Palin) enjoy vilifying the Supreme Court and the judicial branch as a whole. Perhaps it’s because they were put in place to check and balance the power of the other two branches, perhaps it’s because many judges aren’t elected by a popular vote (though many are), who knows. But it’s an important part of our system and I’ll be damned if I’m going to just sit here and let people rip apart the judicial branch!
We should start with the most basic way to understand things. The program that taught you what a conjunction is or how a bill becomes a law…Schoolhouse Rock!
“Balancing the wrongs with your rights…” Thank you, Schoolhouse Rock!
In addition to the Supreme Court, there are circuit courts, courts of appeals and other levels of courts all over the country. After each court’s ruling, you have the right to appeal to a higher and higher court. However, once you present a case before the Supreme Court, that’s it. Game over. As of now, there’s a galactic court or anything that you can appeal to above them.
The court will hear arguments and then give a ruling based on their interpretation of the Constitution. Their are different forms of Constitutional interpretation. Please forgive the wikipedia link, but that actually explains them pretty well.
Think back on many historical landmarks and the chances are good that the Supreme Court or a court on a different level is behind them. That includes the desegregation of public schools, giving women the right to choose what happens to their body, teaching evolution in schools, Title 9, etc. The courts aren’t beholden to the will of the people, like the other two branches, their sole job is to uphold the Constitution and the rule of law. That’s where accusations of activist judges come into play.
The check on the power of the Supreme Court and other courts is that they’re nominated by elected officials and have to be approved by elected officials. Thus, it’s assumed that no one who radically opposes the will of the people will be nominated or confirmed.
There’s a very serious issue facing judges today and that’s safety. I heard a former appeals judge speak about this many years ago. Many judges face danger for simply doing their job and ruling on a case. There is something called judicial immunity, which states that a judge cannot be sued for their conduct on the bench. There have been movements against judicial immunity. The one this judge was speaking against was a Judicial Accountability Initiative Law for Judges, by a group called J.A.I.L. 4 Judges. The judge I saw said that these kinds of laws simply cannot pass. If they did, it would completely compromise the role of the judiciary. It would impede their ability to rule on cases and interpret the Constitution.
Maybe it’s the robes or the fact that they serve life terms, but a lot of people don’t seem to understand the role of the judiciary. At it’s root, it’s simple. They look at a law or a case, then look at the Constitution and decide if the two things match up. When you hear people talk about activist judges, look at who the judge is, who nominated them and what sort of rulings they tend to hand down. One person’s activist is another person’s conservative.
Congratulations to Elena Kagan on this incredible achievement.