Can a court that begins hearing a case while spring-loaded to deference in favor of the Legislative (a law is likely Constitutional, or a law should be read in a manner consistent with it being Constitutional) or the Executive (a Department’s or Agency’s Rule is likely proper) actually hear the case impartially?
There’s an interesting symposium recently held by the Institute for Justice’s Center for Judicial Engagement that bears on the matter; the papers presented are about to be published by the Georgetown Journal of Law and Public Policy. Professor Randy Barnett, head of Georgetown University’s Center for the Constitution, has a (draft) Foreword that’s available now. That Foreword is titled Why Popular Sovereignty Requires the Due Process of Law to Challenge “Irrational or Arbitrary” Statutes, and it bears directly on the question I asked above. Below are a couple of dispositive excerpts [emphases in the original] from the Foreword. As they say, RTWT.
In other words, before sovereign individuals can justly be deprived of their “life” (by capital punishment), “liberty” (by imprisonment), or “property” (by penalty or fine), the “due process of law” entitles them to a judicial evaluation of whether a statute being enforced against them is within the “just powers” of Congress or state legislatures to enact. And the “due process of law” requires that such a statute be a “law.”
Notice that. “Due process of law” is not one phrase, it’s two—”due process” and “of law”—each of which must be considered separately in adjudicating the legitimacy of a law.
And the bit about judicial bias in hearing cases—and it’s not Liberal vs Conservative bias:
Crucially, the “due process of law” requires that the magistrate or judge hearing such a challenge be impartial. If the judge hearing a challenge simply “presumes” that the legislature is acting properly, or “defers” to the legislature’s own assessment of its powers, then that judge is not acting impartially. Even worse, if the “presumption” in favor of legislation is irrebuttable, then the person dressed in black robes is not acting as a judge at all.
Either the Court and its judges/Justices are objective, impartial, or they are not. There is no middle ground.
The answer to the question, then, is a resounding No. There can be no judicial deference. Every case before a court must be addressed by that court without regard to the claimed—especially without regard to any presumed—authority of either of the other two branches of government, neither of which are in any way superior to the Third Branch.
It’s long past time our courts, and especially our Supreme Court, lost their deference and resumed their place as a coequal branch of our Federal government. Of course, that will require Justices like Ruth Bader Ginsburg (the Constitution is a living document and requires constant judicial reinterpretation to “update” it) and Sonya Sotomayor (the empathetically wise Latina) to be replaced with properly textualist (or originalist, but that takes an increasing skill at mind reading as the origin recedes into the past) judges.
Update: Bad misspelling, bad. [sigh]
