As we enter the 19th year since the last prisoner was put to death in the California gas chamber, the mood of the people is one of impatience. Two statewide votes in favor of the death penalty, a successful gubernatorial candidate making capital punishment his principle theme and an abundance of horrible murders have combined to increase popular support for the executions to begin. Yet our methodical system of checks and balances does not respond so quickly. The judicial tradition is to scrutinize each case and apply the most exacting standards of due process.
Demagogues have a field day whenever there is a matter that stirs up fear and portends cheap political victories--and all the better if there is an available scapegoat. Today, in California, we witness the spectacle of ambitious politicians virtually salivating at the opportunity to attack the state Supreme Court and associate vulnerable candidates with what is perceived to be its current unpopularity. Judges, the Supreme Court, Chief Justice Rose Elizabeth Bird--all are now invoked as code words for the causes of crime. Getting the judges, these eager politicians imply, is the precondition for getting the criminal. Conveniently neglected is the fact that California is following precisely the national trend: declining crime rates and dramatically rising prison commitments.
H.L. Mencken once defined politics as "the shoosing away of hobgoblins." For those merchants in fear who see the California Supreme Court as just another hook with which to catch votes or campaign contributions, a better hobgoblin would be hard to find--mysterious, easily vilified and defenseless. The current controversy surrounding the courts and the specter of criminals on the loose provides the political entrepreneur with just what he seeks: a splendid opportunity for mining the electorate.
But the issues raised by electoral confirmation or rejection of Supreme Court justices involves more than politics and the fate of a few judges. At stake is a choice about fundamental principles and the kind of government we want. How independent should our judiciary be? And how much should the power of the state be constrained in the pursuit of justice and its corollary, due process?
Empowering judges to make decisions in accordance with their understanding of the law, irrespective of the demands of politicians or the passions of the citizenry, is a novel idea. It arose because the architects of our constitutional framework had few illusions about the perfectibility of man or the unqualified wisdom of the majority. They believed that human nature had inherent weaknesses. That is why they constructed a system of countervailing pressures to ensure that neither the majority nor any minority monopolized power.
In one sense, one might call the Supreme Court the "original sin" branch of government because it functions to curb our excesses--whether by President, prosecutor or ordinary citizen. The court exists by popular consent but with the purpose of independently elaborating the principles of the Constitution and, when necessary, reigning in the passions of the people. Few other nations have adopted this philosophy. Throughout the world, both in the totalitarian left and the authoritarian right, government officials abuse people in the name of the people or in the name of some other ideal. Sadly, most leaders see it as their prerogative to have judges who do their bidding. Such is the greedy ideology of the despot.
But things are different in the United States. Our heritage sees in judicial independence an ingenious method of limiting the natural tendency of governmental power to accumulate, centralize and then tyrannize. Separating the executive authority from the legislative, and both from the judicial, reflects an American distrust of power. More than efficiency or success or even safety, the founders of our republic wanted freedom; and they expected it, not from an all-powerful state that would always carry out the desires of the majority, but from a system of checks and balances or limits. Such limits frustrate, as they do now in California, because by their nature they stop powerful people from doing what they want.
From almost the beginning of our country, there has been a tension between elected officials claiming to carry out the popular will and judges who invoke the right to invalidate actions or laws that they believe contravene the Constitution. For example, our third chief justice, John Marshall, was attacked unmercifully by President Thomas Jefferson and his political allies for interfering with what they considered their electoral mandate. One of them, William Plumer, the governor of New Hampshire, wrote: "The judges of the Supreme Court must fall; they are denounced by the executive, as well as the House, and why should they remain to awe and embarrass the Administration? Men of more flexible nerves can be found to succeed them."