Earlier I posted about how it seemed that the media was well on its way to overtaking the judiciary as the real judicial power in America. We saw this in our latest presidential election, with the media ruling on Trump's election fraud claims before the courts did, and then pronouncing his opponent Biden the winner before the legal dispute was decided by the courts. And the people accepted the media's ruling without any real interest in what the courts might have to say. Ultimately the courts did rule on Trump's claims and rejected them, but it seemed like people had already decided based on the media. Now Trump's legal team is under attack from the bar itself, and maybe they should be, if they lied on purpose. But you could see how the media could do this in lots of other legal cases, framing the dispute how they chose and pushing people to lean one way or the other, and in that way they could put some pressure on judges to decide cases the way they (the media) wanted, since even judges can be peer pressured. Maybe this is an issue that's been around for a long time and it's just me that's noticed it now, I don't know. But in any case, it did cause me to take notice, how powerful and ambitious the media could be, if they wanted to take over a branch of government de facto. Did they really? I wondered if that was an actual thought out agenda that media had.
And then I saw a couple articles in the NY Times, entitled "Down with Judicial Supremacy!" and "The Supreme Court Needs To Be Cut Down To Size" which seemed to confirm the ambitions of the media. These two articles (and maybe there are others like them out there) address this question directly, because in these articles, a member of media is directly arguing that the Supreme Court should not be the final arbiter on constitutional law. The author says that the Supreme Court can be undemocratic, in that it has sometimes come out with unpopular decisions that worked against the progress of things like racial equality, and therefore, they should not have the final say. But then who should? The author seems to think the people, the legislature, or maybe the media. He is basically saying the Court and its proponents are basically old white men, who are not in tune with things like BLM (not the author's words per se, but that's what I read between the lines).
This is all getting over my little head, having to do with the structure of government, politics, and all that. But all I remember from 7th Grade Civics class (the last time I studied Civics), is that we have a government of checks and balances, and that we have three equal (?) branches of government for this purpose, so that each can check the others. I think this is considered to be one of the more clever ideas the founders had - this checks and balances thing - or at least, if not clever, one of the distinctive things about our government. Our founders were sagacious and practical, and knew that one branch of government, if left unchecked, could run amok. And therefore we have three of them, to slow down the one that's running amok. But this author seems to want America to be able to run amok unchecked, and does not like that the judiciary has the effect of slowing things down. Nobody says the Supreme Court gets every decision right, and there are famous (or infamous) decisions over the years that look terrible today, decisions that say that blacks were not meant to be "citizens" within the meaning of the constitution, things like that. But if we think of the Supreme Court as filled with old graybeards who are trying to interpret the law, then maybe it is legally accurate to say some of these unpopular things, like the constitution did not mean to include blacks as citizens. Because maybe it didn't, and that's a defect with the original constitution and our founders, some of whom were slaveholders, all of whom were probably white supremacists (remember, everybody was basically a white supremacist in America until recently, in the sense that it was taken for granted that whites ruled the world because they should, which they did, and sort of still do). But the NY Times author who wants "Down with Judicial Supremacy" does not seem concerned with correct interpretation of law. He wants to be able to get on with the current movement towards racial equality progress (assuming that's what it really is), which currently is BLM.
But can we be so sure that everything with BLM or any other powerful movement is all good? How about other values that we have, and which we have valued for a long time - things like the rights of the accused, a presumption of innocence, due process rights for everybody (including perhaps white people too). Some of these rights seem to be on their way out, with things like the "MeToo" movement, which says we're supposed to believe the accuser right away just because she said so, never mind if the accused person is guilty or maybe not entirely. So maybe it's not so bad to have a judiciary, one filled with old, learned slowpokes who will poke some holes into our fast moving social movements with their legal objections, and maybe remind us that there are other important values we have, values other than what the movement of the day is pressing hard, and that these old values are in our laws, and so we should remember them too. And there should be a body like the judiciary that is willing to be unpopular and be a stick in the mud.
So should we really agree with this NY Times author and say "down with the judiciary"? One of the old lawyers I once worked for said to me once that one good thing about WASPS was that they make good judges. He maybe was a WASP himself, but I kinda know what he means. There is something brutally fair and harshly even-handed about a good judge, at least when it comes to procedure, and I sort of agree that it's a characteristic of some WASP judges, maybe because our common law system comes from a WASP background - England, Angles and Saxons going back to the dark ages. Our system of laws and the way our court system works, or is supposed to, is pretty cool. There is an obsession with fairness to both sides and especially to the rights of the accused, which is kind of counter-intuitive, but which is admirable and generous-minded. It is based on intuitions like it is better to let 10 guilty people go than to let 1 innocent person be sent to prison or hanged. What does something like that say about the mindset of a people who believe it? I don't know, but I like it. But it seems to be going out the door in some quarters. But then if you read the comments people write to some of these current type media articles, you see that there are still old-fashioned people who still strongly believe in our old rights handed down over many generations from the original WASPS. So what if they were WASPs, if they gave us a great legal tradition.