In many democracies, the judiciary is protected, to one degree or another, from the voters. Our federal judges, for example, though appointed by elected officials, then have lifetime tenure. In
Today's episode is about the Judiciary and Democracy. Our guest will be Larry Kramer, Dean of the Stanford Law School. We're really looking forward to having Larry as our guest. Larry has been an agent of change since coming to Stanford. It used to be that the law school barely cooperated with the rest of the University. But under Larry's able leadership many good partnerships are being formed between Law and other arms of the university. For example, there are now joint PhD-JD programs in a number of areas in the university, including a joint Phd-JD in philosophy. So all you inspiring Philosopher-Lawyer Kings out there put Stanford on your list of possible places to pursue your dreams.
Anyway, on to the subject of today's show. In one way, it seems obvious that the court system -- especially judicial review of the acts of the legislative and executive branches of government -- is, in one way, a bulwark of our constitutional democracy. That was a point made clearly and forcefully by a past Dean of the Stanford Law School, Kathleen Sullivan, who was our guest on Capitol Hill when we did a show on Separation of Powers. The court protects certain minority rights from being trampled by the majority, protects the basic liberty and participatory rights of all, and checks the excesses of the other branches of government. That's all well and good and crucial for democratic self-grovernance.
So what's the issue about the courts at all? Well, surely one issue is that the main means by which we the people can hold our government accountable is through the electoral process. But judges, by and large, do not serve at the pleasure of the people I am not advocating that they should. Indeed, I despise judicial elections. Here in California we have judicial elections for certain judges. They are usually low key. You hardly ever see the judges out actively campaigning for office. Instead on our massive electoral guide, you get their written statements. And unless they've somehow been in the news for some other reason, that's about all you learn about them. Still, I almost always find their candidate statements repulsive, simple minded things, designed to pander rather than to inform. Elected judges become pandering politician, even if on a smaller scale. So I prefer to see judges appointed rather than elected. Unelected is more likely to mean independent, especially where appointments are a joint responsibility and come with lifetime tenure.
So what's the real problem? Well, the decisions of the Courts, especially the Supreme Court, have had far reaching and often wrenching social consequence in recent and not so recent years. Over the course of the last fifty years or so, the Supreme Court has played a major role in the transformation of our social life. With the stroke of a pen, it struck down segregation in the schools, placed severe limits on the regulation of abortion, greatly altered the way police do their business, severely constrained the extent to which affirmative action could be used to bring about a more inclusive society -- and on, and on, and on. Whether you think these decisions were well-decided, from a legal constitutional perspective or not, you have to admit that they were enormously consequential. And the consequences were not all good.
Indeed, I submit that the courts are to some large measure responsible for the fractious and divided nature of our politics over the last 50 years. That's because many on the losing side of some of the court's decisions felt as though their opponents had won through the court system what they had no chance of winning through the political system. And the losers organized themselves to try to seize the political process to gain back what they thought that had illegitimately loss.
Now I'm not saying that the court was therefore always wrong to decide as it did or that the losers are right to try to use the political process to undo what the court did by judicial fiat. I'm just saying that when the court is believed by many to have "usurped" the political process on behalf of a set of sectarian interests, social and political turmoil is all but inevitable. That isn't necessarily a bad thing. As I say in this piece, stability in the service of reaction is no virtue, instability in the service of progress is no vice.
Still, I think there is something to the thought that what the political process CAN decide, it really SHOULD be left to decide, at least ceteris paribus. Take the abortion issue. It seems to me that if the question of abortion had been left entirely to the political process, we would by now have had a long settled and reasonable compromise. There would be some restrictions on abortion; these would vary from state to state, but it seems hardly likely that abortion would be flat-out illegal in all circumstances anywhere. The compromise might not represent an equilibrium point. We would probably find a certain ebb and flow in the restrictions that states place on abortion as social attitudes and mores evolve. But what would be missing, I think, is the current level of intensity and anger that certain parties currently bring to this issue.
Again, I'm not suggesting that the threat of instability is always sufficient reason for the court to forbear deciding an issue. Sometimes the court needs to, as it were, shake the society up and to serve as the leading edge of social progress. But I don't think it can be denied that when it does so, it may have massively destabilizing effects on the political system. And those destabilizing effects may severely threaten the social progress the court aims to bring about. No other institution has such a unique combination of powers to, on the one hand, effect, for good or ill, the political process, but, on the other hand, to stand outside the political process, almost entirely unaccountable to the people at large.
Perhaps I'm wrog, but this strikes me as something of a paradox. What do you think? Have I missed something?