Congressman Mike Pence is at it again. In comments made during debate over the recent court-stripping bill he sponsored, Pence asserted that "the notion of an independent judiciary is a flawed notion."
Congressman Mike Pence is at it again.
In comments made during debate over the recent court-stripping bill he sponsored, Pence asserted that “the notion of an independent judiciary is a flawed notion…”
In 1940, as much of the world was already fighting what would become World War II, a Jehovah’s Witness family sued the Minersville, Pennsylvania, School District over a requirement that all children participate in a morning flag salute—a requirement that violated Witnesses’ religious beliefs. The Supreme Court ruled that civic obligations outweighed the family’s religious convictions. In the intense patriotism that accompanied America’s entry into the war, Witness children who failed to salute were expelled from school, sent to reformatories, and physically assaulted; their parents were prosecuted for “causing delinquency.”
In 1943, the Court took another case, West Virginia Bd. Of Education v. Barnett, and reversed itself. In a famous passage, Justice Jackson wrote “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote: they depend on the outcome of no elections.” The decision outraged many legislators who felt that honoring the flag was more important than respecting the religious beliefs of a minority.
In the 1950’s, negative reaction to Brown v. Bd.of Education was so intense that President Eisenhower had to use troops to enforce the court’s ruling that separate wasn’t equal. And there was much public hand wringing when the Court ruled in Griswold v. Connecticut that legislatures had no business deciding the “morality” of contraceptive use by married couples.
Would elected judges, answerable to voters, have made these—or similarly controversial—decisions?
Even a cursory reading of Jefferson, Madison and Hamilton is sufficient to demonstrate that they understood what Congressman Pence does not: that an independent judiciary is essential to justice. Independent judges are equally essential to the preservation of the Bill of Rights, a document which was specifically intended to protect our rights against the righteous (or self-righteous) wrath of our neighbors.
A couple of months ago, Pence and other House extremists passed a bill denying the federal courts the right to hear challenges to the Defense of Marriage Act. Last week’s bill stripped the Court of jurisdiction over challenges to the current language of the Pledge of Allegiance. To paraphrase House Democratic Leader Nancy Pelosi, what’s next? Voting rights? Laws prohibiting racial discrimination?
Of course, even in the unlikely event these bills were to pass the Senate, they violate the constitutional separation of powers, and will be struck down. Perhaps this legislation is mere political posturing, intended to motivate the far-right fringe in an election year, not evidence of a fundamental misreading of American law and history.
Of course, even in the unlikely event these bills were to pass the Senate, they violate the constitutional separation of powers, and will be struck down. Perhaps this legislation is mere political posturing, intended to motivate the far-right fringe in an election year, not evidence of a fundamental misreading of American law and history.
Either way, it isn’t pretty.