Is the Judiciary Undemocratic?

Two recent happenings in the world of the judicial branch of the United States have got my brain rolling again in the world of law. First, and least important in my opinion, is the confirmation of Elena Kagan to the U.S. Supreme Court. Congratulations to her, and I hope that she proves to be a worthy justice. The make-up of the court, much like with Sotomayor's confirmation, will not change with this appointment. To all the detractors that claim that she is inexperienced, we must remember that William Rehnquist had no bench experience either. Secondly, Perry v. Schwarzenegger has been decided in favor of the plaintiffs, striking down Proposition 8 in California and paving the way for appellate and eventual supreme court arguments (one can hope). Both of these elements bring about one of the most fundamental questions that I have concerning the entire judicial branch of government: is the judiciary undemocratic?

In order to get to the answer to this question it would do us well to explore what I mean by democracy. In plain terms, democracy comes from the greek dêmos meaning people and krátos meaning power. People power. In theoretical terms, democracy exists only when the people decide. We obviously do not have this style of government and never have had it. In fact, it does not seem to be desirable or practical. Decisions about national security, for instance, should not be left up to majority rule, for in the process of informing the public about the issue, we may reveal secrets that aid enemies of the state. Thus, some portions of our government are not purely democratic and should not be. Instead we tend to claim that we have is a Republican Democracy but that doesn't seem to be accurate either. The only thing that the term Republican tells us here is that our leaders are elected by us and that there is no monarchy. In any event, we tend to view America as being a democracy, or at least having a democratic ideal that we strive for. The executive is selected by us, the legislative is as well. The judiciary, however, besides some local and state judgeships, is for the most part filled by appointment. The theory behind why judges are appointed and not elected is that it removes them from the world of politics and allows us to view them as isolated and impartial. Few things are worse to Americans than the notion that the rulings of judges are political in nature. So we have here at least one characteristic of the judiciary that is undemocratic. Judges are not elected by us.

That first strike against democracy by the judiciary is the least important, however. If we dig a bit deeper we see an even more theoretical underpinning for the undemocratic nature of the judiciary, one that has strange historical bedfellows. When the Constitution of the United States was ratified, the language concerning the judiciary was rather sparse. Article III outlines the structure of the supreme court and its jurisdiction (original and appellate), but gave very little instruction on how the judges should rule. Coupled with the lack of the any outlined bill of rights, the Constitution lacked any sort of judicial map. Due to concerns unrelated to the judiciary, the bill of rights was supported, against the wishes of some of the framers (including Madison), by Jefferson and others. Here we have a strongly small government guy (Jefferson) arguing against a guy who tended toward centralized government (Madison) arguing in favor of federal protection of specific rights. Jefferson's legacy has become something of an individualistic war cry. We pull Jefferson out every time we want support for individual rights against the tyranny of government, or the majority. In any event, once the Bill of Rights was ratified, the court system had a better guide in their judicial decisions, at least federally. It took another one hundred and fifty or so years for the first ten amendments to be incorporated into the law of the states, and even now some do not apply effectively.

In the end, it seems that the party responsible for the reliance on the bill of rights by the judiciary was the precursor to the small government, individualists that we now characterize as standing on the right side of the line. What is interesting is that the right currently accuses the judiciary of "activism" when it rules in a way unfavorable to their other, unrelated convictions. This is partly because of disagreements about the rulings, but more importantly because they see that the judiciary, by usurping the power of the people, has performed an undemocratic act.

This undemocratic nature of the judiciary, I believe, is one of the strongest parts of American life. In order for freedom to exist in the way that Americans characterize it, we must rely upon a safeguard against the "tyranny of the majority" as Alexis De Tocqueville describes in Democracy In America. We must be willing to say that sometimes, judges know better than we do what is good for the individual. Else, we have mob rule, which we all can agree is a very frightening prospect. It is important to remember, at times like these where we are polarized by issues like gay marriage and illegal immigration, that the judiciary is there to act as a moderate voice in the debate. We should back off of our calls for impeachment of judges when they rule in ways that we disagree with and we should understand that when we call judges "activists" we are describing the function we as a nation already prescribed for them. Yes, the judiciary is undemocratic, and it's better that way.