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An Independent Judiciary

This is a subject that gets far too little attention. It may not be glamourous or sexy, but it is extremely important. If one's country is to be ruled by law rather than men (or women for that matter, as they have not proved to be any more trustworthy than their masculine counterparts), an independent judiciary is vital.

So what does that mean? The ideal is courts that are impartial, trained in the law, and steeped in a culture that values respect for law and precedent above all else. Judges should be above partisan battles and the passions of the moment. They are a necessary last bastion against both tyranny and demagoguery.

It is not an easy thing to achieve, so it should not be treated casually. Too often it has been.

The results of having a court abandon these principles is evident in the Roberts Supreme Court, and before that the Rehnquist Court. Decisions such as Bush vs. Gore (2000) under Rehnquist, in which Justice Scalia abandoned precedent, law, and his own often-stated principles to ensure a Republican victory. Lance Dehaven-Smith has shown that a partisan Supreme Court together with a partisan-controlled electoral process in Florida effectively stole the 2000 election, with disastrous results for the country.

One of those disasters is the Roberts Court, which also abandoned law, precedent, and even plain common sense in Citizens United v. Federal Election Commission (2010). Where Bush vs. Gore abandoned law in favor of the Republican Party, Citizens United did so more generally to replace our democracy with a plutocracy. Essentially, it gave permission to the very rich to buy the government.

If they have succeeded, then a Supreme Court which has become a de facto wing of the Republican Party will have effectively disabled the genuinely democratic election of the other two branches of government, ensuring the perpetual dominance of the plutocracy.

It is not easy to say how to change this. As things stand at the Federal level, the only hope is to take our government off the market—or off the money market and on to the idea market. Without that, nothing else is possible.

But if we can restore democracy in the legislative and executive branches, there are principles to guide us to the establishment of a genuinely independent judiciary.

The following page appeared originally on the website, but as that site is no longer being updated, the whole thing (it is short) is reproduced here. With one caveat, it is an excellent guide to what an independent judiciary means.

[The Federal Government's View of the Issue]