The judicial branch is crucial to the overall effectiveness of the American government. Reigning in the already limited power of America’s judges would be a grave mistake. Currently policy making is more complex than ever before, laws are created at a breakneck pace, and are made under intense partisan pressures. In order to advance their careers, politicians are forced to remain in the press, raise tremendous amounts of money and avoid most contentious or unpopular positions. In this congressional system which prioritizes popularity and speed, careful deliberation is disappearing. The judicial branch provides a necessary place for policy makers to study the details, specifics and minutia of American policy outside the pressures inherent to elected office. Simply put: policy making is an imperfect process and needs the corrective element of the judicial branch to succeed.
In our litigation happy era, the courts as a hole address nearly every element of every policy in America. By taking time to decide each case, judges mend, interpret and even eliminate small parts of all American policy. These details are minutia barely examined at the federal level, but still have huge impacts on real people at the ground level. Giving the judicial branch as much space as possible to do this deliberative work is essential to prevent congressional errors or oversights from going unspotted.
The thought of a rogue judge making wildly activist and unpopular decisions is a scary one, but in reality unfounded. Activism occurs, and constitutes an important part of shaping policy. However, the complex process of appeals, precedent and implementation limits the ability of anyone one judge or decision to radically alter American policy. In fact, despite the autonomy of individual judges, the branch as a hole remains slow moving and well regulated.
First consider precedent: judges defer to the reasoning of higher courts. That is to say, that once the Supreme Court has made a decision on any given issue, lower courts will follow that lead and make similar decisions. While sometimes a judge will disagree with a high court, these rulings are by far the exception to the rule, and often get overturned upon appeal. This means that no matter how radical any given judge, he or she is bound by hundreds of years of precedent, and reality higher courts ready to strike down unruly decisions.
Secondly consider deference: the courts stay out of issues of national security. For better or worse, the courts chose to remain weak on military matters and questions of national security. Recognizing their lack of expertise and the risk of classified information leaking, justices rarely rule against or even hear cases involving the military. Some consider this lack of oversight a tragedy allowing rights abuses such as Guantanamo Bay and wiretapping, while others view an unhindered executive and military as essential to national defense.
Thirdly consider that the judicial branch is slow and obtuse. The process of hearing cases, deliberating on questions of constitutionality, deciding appeals and releasing decisions all takes time. A radical agenda cannot suddenly be forced on the nation, rather it takes considerable time and many agents to establish or significantly change a precedent.
Lastly consider that the Senate, and the people, has the final word. If these institutional checks do fail to reign in the court, the Senate can legislate over the unpopular decisions, or even amend the constitution. While judges themselves are immune from public opinion, their decisions are not.
The courts play a vital role in the formulation of American policy. The Senate is an imperfect and overburdened institution which has no right or need to interfere with the operation of the courts. Rather than try to reduce judicial power, the congress should rather be watchful of final precedents and trends, and be prepared to legislate corrections from time to time.