Where Have All The Flowers Gone?
By: Bill Schoettler
May 11, 2022
The seeds were planted over 250 years ago, nurtured through multiple wars, depressions, pandemics, and many miles of print, airwaves filled with electronic messages and speechifying galore, and periodically harvested in times of peace and prosperity (not really that rare but not as frequent as we would have liked).
Today we have a multitude of weeds growing in our garden, all threatening to choke the lifeblood of our country and destroy the soil to an unprecedented extent. We have barely survived (or did we?) a medical emergency that shut down the entire country based on uncertain and misunderstood (this is a generous characterization) “scientific” principles, have characterized riots and violent gatherings as “protests” but taken a quiet and non-violent protest and characterized it as a “revolution” and finally have heard called members of the Republican party as being the greatest historical threat to our democracy the country has ever seen.
Consider that our elected representatives, congressmen, senators, mayors and governors, and all the other “elected” people who are responsible to the citizens to safely and carefully run our country, all these people are not only elected but required to periodically run again and again for election. The running-for-election is a process that is an ever-growing expense and requires far more money than the public office provides in the way of salary. Thus the only way a candidate can win an election for office is to have a large (very, very, very large) source of campaign funds to finance an election campaign.
To get elected any candidate must carefully choose a political philosophy with which he agrees and then promise his constituents to uphold that philosophy by consistently voting to support it. Or at least that is the general pattern.
Then we have the US Supreme Court…and the Federal Judges spread over the 50 States, all of whom are appointed and not subject to the costs of elections. The Justices who assume their seats in this court system are not beholden to any political philosophy but do take an oath of office to uphold the Constitution of the United States. They are appointed by the President and their appointment is ratified by or consented to by Congress. For the most part, the consent is Pro-forma but periodically, and particularly for appointments to SCOTUS, the confirmation/consent/ratification process can be contentious and hotly disputed. We have witnessed the challenges to many recent Federal appointments.
But now we are witnessing disruptive and antagonistic gatherings at the homes of some Justices based on the objection of some citizens to a proposed ruling by SCOTUS. Aside from any such gathering at either the residence of a Justice or at the courthouse being illegal, there is a deeper attack on our “garden of democracy” that is happening. A Justice, at any level of the Federal court system, does not have to “run for election”, and does not depend upon the existence of his job for continual support or acceptance of his rulings and decisions in any case. The Justice is thereby considered free from outside influence, from undue pressure from any “special interests” and is not required to justify his decisions to any constituents.
Each citizen has the right to free speech. This freedom includes the right to argue against, dispute, or even disagree with any decision by a Federal Court Justice. If a citizen disputes a vote by an elected legislator the legislator could ignore, at his peril, the opinion of that citizen. The Justice, on the other hand, is free to ignore any disagreeing citizen.
The theory behind this arrangement is one that was carefully analyzed and even fought over by our founding fathers. Having a completely “free” judiciary and making that judicial body a co-equal member of a tripartite government was a stroke of genius. Congress (an elected body answerable to the electorate) proposes laws, the President (also elected, answerable to all citizens) signs the laws into existence and then enforces them while the Federal Judiciary (subject to no outside pressures) acts as a referee and either supports or modifies or abolishes these laws.
All sides of any philosophical position can be presented to the Federal Courts and the Justices are free to agree or disagree…based solely on their personal philosophies. This system has worked for over 250 years.
But now we are experiencing a violent protest by some citizens who oppose a prospective (not even an “actual” but a “proposed”) ruling by SCOTUS. Direct stated and implied physical threats are being leveled against not only the Justices themselves but their families as well. Nothing good can come from this.
Consider the realities of the system that now exists and the potential consequences of that system were it to be different. The elected representatives of the people can be persuaded to change any position they might take on any given subject. Failure to change their position, a failure to make a change when presented with significant and possibly overwhelming support [of their electorate] against the position may result in an unwelcome [for the elected official] lack of support in the next election.
Looking at the two houses of our government which are subject to election, it is obvious that the “voice of the people” has the potential for tremendous influence.
However, when there is an objection brought against any law or the way any law is applied, the Federal (and the State) justice system allows there to be either an exception made based on particular circumstances or outright repeal or even a modification of any law.
Asking for repeal, a modification or a carved-out-exception of a law or its application requires a very formal and somewhat complex process involving the presentation of evidence, arguments, and careful analysis of facts, theories, and other relevant circumstances and ultimately a careful deliberation by either a jury, judge or panel of judges before a final decision is made.
If judges were to be regularly elected they would become subject to pandering to the electorate, they will require significant funds to achieve and maintain their positions and their views would become heavily influenced by those who have chosen them. Thus judicial decisions would be subject to those with the most money, the loudest voices, or the strongest influence (however it may be defined). The so-called “independence of the judiciary” would no longer exist.
The legislatures of the various states and the Federal Government have thusly enacted laws protecting all judges, court functionaries, and witnesses from harassment and intimidation, and threats of any sort and from any source.
If it is the desire of the people, the citizens of this country to have judicial decisions made based on the loudest voices, the most money contributed or the strongest pressures applied, then the simple answer is to overhaul the Constitution, abolish the protective laws referred to above and reform and re-imagine our system of government.
Otherwise, the harassment of Justices must cease and the police arm of the Federal government must act to stop all such conduct. And it would be very helpful if the citizens of this country were to read the Constitution and those who disagree with the way it is designed to operate…leave.