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In last week’s blog, I noted a disturbing coarseness in certain U-T comments concerning the federal court’s recent ruling on criminal sleeping by the homeless . Actually, I too would like the homeless to not sleep in the doorways of downtown commercial buildings, which I think is the U-T’s point, but I can see the federal court’s issue on the subject. That’s not the point here.
The point here is the more regular “personal” attack on the federal court itself with terms like “imbecilic,””absurd” and the like. The U-T feels comfortable with that type of populist talk, and it wouldn’t bother me but for the increasing stress I sense on the balance of consanguinity required to maintain an ordered society. Without courts, it is impossible. Without respect, courts are just places and judges are just people. And both are expendable.
I haven’t appeared in a federal court in quite a while. I certainly won, and lost, my share when I was more frequently there. But, I appreciate the court’s role in the big Paleolithic civic movements that sometimes occur only because the populace respects the court and is willing to follow its rulings, particularly when they don’t like them. And, for that reason alone, a bit more care is required from those with great influence on the attitudes of whole communities.
I recently saw an interview of former and current Supreme Court Justices O’Connor and Breyer where they voiced aloud their concerns about the pressures mounting on the federal court system. The Congress threatens to reduce their funding for decisions not politically in vogue. The press demeans their role if social decisions are not as locally desired. Decisions become personalized in a national system that requires dispassion.
The strength of the federal bench is not that the judges are brighter than the rest of us, but rather because the system is neutral. That’s why it can protect minorities against majority rules that would otherwise oppress and disenfranchised them on a straight political basis.
In doing so, they sometimes make other branches of government angry. Same for some communities and their newspapers. It happens.
The Supreme Court rules on about 80 of the 8 million federal system cases annually. The Ninth Circuit Court of Appeals (California’s Federal Appellate venue) about 16,000. In each case, somebody loses. And, the loser is often very unhappy. Sometimes, really, really mad. But, the court system only works if the process is respected by the people, even when a majority of them feel as if they lost.
James Madison saw the court as the bulwark against the loss of constitutional rights. And that is only so if it is supported by other branches of government and society.
Couple of examples.
In 1830, in a case called Worcester v. Georgia, the Supreme Court found that Indian nations were capable of making treaties, that the federal government had exclusive jurisdiction within the boundaries of the Cherokee Nation, and that Georgia state law had no force within the Cherokee boundaries.
President Andrew Jackson refused to enforce the court’s decision and is believed to have said: “[Justice] John Marshall has made his decision, now let him enforce it.”
The court obviously did not have implementation resources, and the court’s ruling was not supported or enforced. The Indian Relocation process and the Trail of Tears was a part of that era, and the absence of respect for the court marginalized its decisions.
In 1957, then Democratic Governor of Arkansas, Orval Faubus, made a stand against the integration of Little Rock, Arkansas, schools using National Guard troops, all in defiance of U.S. Supreme Court rulings. Faubus’s decision led to a showdown with President Dwight Eisenhower. In October 1957 Eisenhower federalized the Arkansas National Guard and ordered them to return to their armories which effectively removed them from Faubus’s control. Eisenhower then sent elements of the 101st Airborne Division to Arkansas to protect black students and enforce the Federal court order.
This was not a fight Eisenhower needed or wanted. But he understood the federal court’s role and supported it.
Nixon’s reluctant compliance after losing his arguments on “executive privilege,” the Iran-Contra rulings, the Terri Schiavo case. All these matters are enormously contentious. And, while free speech should certainly be exercised on the issues, the process works only if it is respected to the extent that the decisions will be followed, even by influential forces that do not agree.
So, it strikes me that we can do with all the free press criticisms of the decisions that are appropriate in a free society without resorting to the spank-mouth stuff of the WWF. And, we will all get the drift of where the press needs to go without, perhaps inadvertently, diminishing the federal courts. You never know, you may need them someday.
– PAT SHEA