By Carol Lucas
Can we agree that the judicial system of the United States is one of the most, if not the most vital aspect of the infrastructure of our democracy? If we can, then there is some disturbing news: that infrastructure, much like some of our roads and bridges, is in disarray and crumbling before our eyes.
The World Justice Project’s 2023 Rule of Law Index ranks our country 116th out of 142 countries on “accessibility and affordability of civil justice.”
This is a drop from our placement of 108th in 2020.
The rule of law index measures the extent to which individuals and firms have confidence in and abide by the rules of society; in particular, it measures “the functioning and independence of the judiciary.”
More than 200 years ago, Alexander Hamilton, James Madison, and John Jay published a series of essays promoting the ratification of the United States Constitution, now known as the Federalist Papers. In explaining the need for an independent judiciary, Hamilton noted in The Federalist #78 that the federal courts “were designed to be an intermediate body between the people and their legislature” in order to ensure that the people’s representatives acted only within the authority given to Congress under the Constitution.
The U.S. Constitution is the nation’s fundamental law. It codifies the core values of the people. Courts have the responsibility to interpret the Constitution’s meaning, as well as the meaning of any laws passed by Congress. The Federalist #78 states further that, if any law passed by Congress conflicts with the Constitution, “the Constitution ought to be preferred to the statute.
“Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It is only supposed that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”
If you are paying attention to the news at all, you know the judiciary system on many levels is under scrutiny, and justifiably so.
The federal court system has three main levels: district courts (the trial court), circuit courts which are the first level of appeal, and the Supreme Court of the United States, the final level of appeal in the federal system.
Judicial review is the power of an “independent” judiciary, or courts of law, to determine whether the acts of other components of the government are in accordance with the Constitution. Any action that conflicts with the Constitution is declared unconstitutional and therefore nullified. Explain then, if you can, the system that chooses to ignore Section 3 of the 14th Amendment. All of what I am writing would be a moot point if this were adhered to.
We have been told that “no person is above the law.” While I want to believe that, what I read tells me otherwise; we are edging very close to a two-tiered system of justice. When I view the way Donald Trump’s lawyers are manipulating the law through constant delay (all legally, I might add), I begin to question the system. Without a doubt, the fly in the ointment, so to speak, is the cooperation of our judiciary in passively permitting this charade to continue.
Consider the below excerpt from Federalist #78.
“The judiciary may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This proves incontestably that the judiciary is beyond comparison “the weakest” of the three departments of power; that it can never attack with success either of the other two, and that all possible care is requisite to enable it to defend itself against their attacks.”
Hamilton defined the judicial branch of government as the “least dangerous;” on the other hand, he emphasized the importance of an independent judiciary. I humbly suggest that neither is firmly established on many levels right now.
I have purposely chosen not to go into long detail regarding the number of trials, indictments, and charges regarding the 45th President. The reality is, this is old news, and has been so for far too long.
We are confronted with one of our two political parties embracing a man who chose rebellion rather than acceptance; a man who demeans our military and courts the dictators of the world; a man facing criminal charges. That is bad enough, in and of itself. With some luck, we can put that past us and move on.
What is perhaps worse, and more difficult to correct, is what I noted at the beginning of this piece, our crumbling judicial system. Criminals come and go; firmly entrenched systems are not so easily eradicated. Right now we are relying upon the Jack Smiths, the Fani Willises, and the Alvin Braggs to pursue justice.
So I ask with all sincerity, is our present judicial system at its weakest? Or is justice still “blind,” meaning objective and unbiased? Ironically, the full saying of this is, “Justice is blind, until a judge gives it eyes.”
Carol Lucas is a retired high school teacher and a Lady’s Island resident. She is the author of the recently published “A Breath Away: One Woman’s Journey Through Widowhood.”
