By Mike Krauss ’71 || Contributing Writer
With thanks to the late Professor Emeritus, John H. Vanderzell PhD, with whom I had two challenging semesters of constitutional law.
It is a lesson taught in classes on the basics of American government and civics: the judiciary is one of the three “co-equal branches” of our government, established in the Constitution; which is the law established by the people.
Like the other two branches, the executive (president) and legislative (Congress), the courts’ authority is a grant from the people. But, unlike the other two branches, that authority is not granted directly by the people in elections, but is conferred by means of a nomination and confirmation by the elected authorities, president, and Congress.
Also unlike elected representatives of the people, the federal judges’ terms of office are for life. So by the method of their selection and term of office, they are thought to be simultaneously accountable to the people, but also separated and protected from partisan political influence and the vagaries of changing public opinion.
But judges are sometimes brought into politics and public policy, because they are invited to referee inherently political contests; most famously, in the case of the U.S. Supreme Court, slavery and segregation.
Sometimes, as in the case of slavery, they get it wrong and are eventually “over ruled” by the people. In the case of segregation, they got it right; and their decision stood, if over the grudging acceptance of some of the people.
That grudging acceptance was the product of what scholars call “deference.” The American people have been willing to accept, to “defer” to the court’s judgments, because the justices are seen as fair, impartial and – most important – removed from the politics of the day.
The role of the courts in the United States is established in the Constitution and not likely to change. But the deference that underpins the courts’ authority is more subject to popular opinion and can be withdrawn. The elected authority, the legislature, can remove – impeach – a particular judge.
That remedy to enforce political will on American justices has been used only rarely in the more than 230 years since the Constitution established by “We the people” has been the law of the land. But it is being talked about now, in Pennsylvania and elsewhere. Why?
Judges have been regularly straying into and getting entangled in what the eminent U.S. Justice, Felix Frankfurter so wisely urged them to avoid: “the political thicket.”
In Pennsylvania, the court has inserted itself into the super-charged partisan issue of how to draw the boundaries of the state’s U.S. congressional districts. This is like stepping into a knife fight, let alone a thicket of thorns.
There are calls for impeachment. And it may happen. The elected representatives of the people in their legislatures are the ultimate power. The president and governors cannot impeach a legislator or justice. The justices cannot impeach a legislator or president. But the legislators can remove both.
And right now, a majority of the Pennsylvania lawmakers are hopping mad at the self evidently partisan judges.
The old map of the boundaries of Pennsylvania’s congressional districts was a work of “gerrymandering” art. Some boundaries twisted this way and that, cutting through counties, cities, townships, and boroughs, running down the middle of main streets to give Republicans an advantage. It had to go.
The new map the Pennsylvania lawmakers drew did a good job of keeping municipalities intact and in one congressional district. The governor rejected it and the court hired an “expert” to draw another map which the justices approved. This map also did a good job of not slicing through municipalities.
But if the map submitted by the GOP majority in the General Assembly did the job of keeping counties and municipalities together, why is the court’s idea any better? What is the standard which the map the General Assembly sent to the governor failed to meet? Why did the court step in?
Politics.
The PA Supreme Court, like only eight other in the nation, is an elected body. Those elected get there the same way as all other Pennsylvania politicians – with campaign contributions and partisan political support. And it shows.
At the same time as the justices in Pennsylvania, federal judges have been routinely setting aside the lawful actions of the president and laws of the Congress, to overturn the policies of cities, states and the nation with which they disagree; and trotting out a Constitutional fig leaf to cover their naked power grab. This is risky business for the federal courts.
In Pennsylvania, the judges stepped into the redistricting battle for good cause, and like the referees in a football game, threw a penalty flag and demanded a fairer game. Well enough. But when the partisan governor did not like the results of the next play, the judges took matters in their own hands. This is like the ref, after calling the penalty, deciding who gets the next touchdown.
Hopefully, the U.S. Supreme Court will reverse the Pennsylvania Supreme Court, remind those Pennsylvania justices of the danger to which they have exposed the judiciary and send the matter back to the elected representatives of the people.
Otherwise, the owners may step in to decide how the political game is played and remove some of the refs; a precedent that would be every bit as far reaching as any court ruling.
Mike Krauss, ’71 is chair of the Pennsylvania Project and writes on the American Experience. www.thekrausscommentary.com / mike@thekrausscommentary.com