Legal Ethics and Reform

Thomas Jefferson and Bob Bork Register Deep Concern about Appellate Court Decisions

Thomas Jefferson expressed deep concern when his cousin, Chief Justice John Marahall, began issuing opinions which put the Supreme Court in the postion of deciding which acts of the President and Congress where Constitutional and which were not. President Jefferson immediately realized that in theory this "self conferred" judicial power was unlimited. He sensed that imaginative justices could always interpurt the Constitution in expansive ways and find Constitution protections and rights which the drafters never imagined. President Jefferson also realized that this power now placed the Supreme Court in the highest position in the government, in other words it placed the Supreme Court in the "cat bird's seat". From 1803, when Marbury v. Madison was handed down, the most important branch of the American government was the Supreme Court not the Executive or the Legislative.

Over the years, as democracy has spread across the world and as America has become such a powerful economic, military and cultural presence, it was natural that the American model of government would become a very popular model. Since the American model has a strong, independent judicary at its core, it is natural that many other countries have set up strong, independent judaricies. Even in France, where the unchecked power of the people's elected representatives has held sway for over a century, a independent appellate judicary has started issuing decisions that challenge the supremacy of the legislative branch.

This worldwide trend has caught the attention of Judge Robert Bork, who was a judge on the US Appellate Court for the DC Circuit and at one time was a nominee for a seat on the US Supreme Court. Judge Bork has written a book entitled Coercing Virtue: The Worldwide Rule of Judges in which he discusses this worldwide trend toward stronger judicaries. However, Judge Bork has gone further and has pointed out the worldwide trend toward authoritaian judges who are willing to impose their own prefereces oftentimes in face of overwhelming opposition from the people.

Setting forth a few examples might be helpful. In Isreal their high court has knocked down preference in law for the Jewish religion, In Britain restrictions passed by parliment on the service of homosexeuals in the British Navy have been struck down. In the US a copy of the Ten Commandments was removed by Federal Court from an Alabama Court building. In Canada, the courts overurned a Consitutional provision that allowed the Parliment to limit the juristicion of the court saying that such a provision interferred with the court's rightful powers.

Judge Bork believes that these courts are simily reflecting an intellecual elite's desire to move the world to a "higher level" of understanding of what is "right". Bork believes that world travel, trade, and communication has created a consesus among the intellectual class in all advanced countries. He believes these intellectuals are actively opposed to organized religion and many cultural traditions that have grown out of religion. Further, he holds that judges, wanting to be accepted into the society of this class, are issuing unpopular opinions in an attempt to curry favor with this intellectual class.

That these judges are making unpopular decisions there is no doubt. The real reasons for their actions are only partly known. There is a modern tendancy to point the finger of blame at advisors and not at the man(men) with the power. President Bush is not blamed for getting the US into the Iraq war, its the neocons that advised him who are blamed. In like fashion, its not the judges who make these horrendeous decsions that are blamed, it's the people they met at cocktail parties that are blamed or its the professors they had in school that are blamed.

However, Judge Bork needs to be given credit for one important proposal. He has come out in favor of allowing a 2/3 vote of the Congress to overturn any Supreme Court decision. This proposal would, in theory, return to Congress is rightful place as the most important branch of the US government. However, because lawyers dominate the Congress and because most lawyers have a excessive reverence and respect for the decisions of the Supreme Court, this new Congressional power would rarely be used. If on the other hand this proposal were augmented by a proposal restricting lawyers serving in government to posts in the judical branch of government, this Congressional power would likely be exersised often enough to give it real force and meaning.

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