Alaska News

Independent thinkers are assets to Supreme Court

Outgoing U.S. Supreme Court Justice David Souter addressed a meeting of the American Bar Association in Chicago last weekend on a threat to American democracy. The timing and the subject of his remarks were chosen quite deliberately, just as the full Senate readied to take up its advise and consent to the nomination of Judge Sonia Sotomayor to the Court. But as he intended, Justice Souter's message has very long-term implications.

Citing the findings of a study done a few years ago, Souter began his talk noting that two-thirds of Americans today cannot identify the three branches of the American government. This, he said, is astonishing. When he was a youngster there was hardly anyone who did not know the three branches. He said growing up in New Hampshire, most of what he learned about American democracy he learned at the annual town meeting, in which anyone resident in the community who wished to could participate. And they did, rich and poor, educated and not, old and young, wise and foolish. It was, he said, an exercise in radical democracy. Today, it seems, the understanding of American democracy is poor.

Souter called on the ABA to join him in an initiative in civic education. The strength and even the very survival of a functioning democracy are dependent, he averred, on a knowledgeable electorate.

Justice Souter is no impractical, starry-eyed, maybe dangerous liberal. He was appointed to the court by President George H.W Bush; Bush's chief of staff, former New Hampshire Sen. John Sununu recommended him. But on the bench he was fiercely independent, opposing re-visiting Roe v. Wade, for example, because to do so would be to bow to political pressure. Souter's advocacy of a serious, national campaign in civic education is significant; it suggests an elemental problem with our democracy.

It is the independence of the judiciary that is Souter's principle concern. If justices and judges are not free to apply the law as they each understand it, if they become susceptible to political and ideological directives, they violate the doctrine of the separation of powers, the most fundamental and vital aspect of our constitutional system. The more fully voters understand this, Souter believes, the more healthy American democracy will be, and the safer American citizens. Quoting the highly respected jurist Richard Arnold, who died in 2004, Souter argued that judges must be independent because "there needs to be a safe place," i.e., a forum where politics does not rule and where the force it might bring to bear to bend people's will cannot prevail.

Yet, the Senate confirmation process has become a partisan free-for-all, as the Senate vote on Sotomayor implies. At the same time, pressure groups have called for the impeachment of judges whose decisions they did not like, and members of the Senate have criticized specific judicial decisions. In Sotomayor's case, Republicans and "blue dog" conservative Democrats apparently do not fear leaving the impression that race is a litmus test for their vote Many have justified their vote against her on the basis of her statement that a Latina who has lived the gritty life of urban poverty may be more sensitive to social issues than rich whites who haven't.

Sotomayor made it clear in her appearance before the Judiciary Committee that she believes a judge's responsibility is to apply the law, not their feelings, and her record demonstrates clearly that she has conducted her professional life in accordance with that principle; it is, as a succession of jurists and senators have noted, exemplary on that score.

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Independent judges have sometimes damaged American democracy, as in the Dred Scot decision before the Civil War, and in the use of the 14th Amendment to protect corporate irresponsibility in the Gilded Age. But they have also moved democracy forward, as in the expansion of the 14th Amendment in the late 1930s to protect the civil rights of minorities, and in the 1954 Brown v. Board of Education decisions.

Judges should expect rigorous examination of their thinking by fellow jurists, by the other two branches of government, and by the public at large. But in the final analysis, Justice Souter is right to insist on their independence of thought and action.

Steve Haycox is a professor of history at the University of Alaska Anchorage.

Steve Haycox

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Steve Haycox

Steve Haycox is professor emeritus of history at the University of Alaska Anchorage.

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