In “How the Supreme Court dilutes democracy” (June 3), Isak Tranvik argued that the judiciary undermines democratic government because “the ultimate authority in our democratic polity appears to lie with a handful of judges and not the people (or their representatives)” and because we “let a handful of appointed elites determine the fate of most legislation.”

According to “Supreme Court defenders,” Tranvik says, “the review of legislation by an independent judiciary is a means by which, if necessary, democracy can be saved from itself.”

Totally lacking from that commentary was any recognition that all laws are not created equal. Some laws are so fundamental that we have established them in a written constitution, placing them above laws that result from the ordinary, political process of legislation. The courts are the means by which we protect those fundamental laws from the changing winds and whims of politics.

A people institutes a government in order to collectively perform those beneficial functions that the people individually cannot perform or cannot perform as efficiently. Any such government’s essential duties are to respect and protect each individual’s freedom of conscience, expression and worship; to establish and guarantee the due process of law; to promote and ensure each individual’s equality before the law and equality of opportunity; and to preserve, protect and defend each individual’s liberty, person and property against injury.

The genius of the American experiment lies largely in the notion of a government of limited powers, in which the sovereign power derives from the “consent of the governed,” as the Declaration of Independence puts it, but is nevertheless subject to certain basic rights and freedoms — enshrined in a written constitution — that the individual retains. Neither the ordinary legislative power nor the executive power can legitimately interfere with those rights and freedoms.

The rule of law and the scheme of ordered liberty that guarantee our individual rights and freedoms depend upon an independent judiciary — independent not only of the legislative and the executive branches, which the judiciary checks and balances, but independent as well of political parties and factions, of moneyed interests and of popular majorities. The judiciary pronounces and upholds constitutional rights and freedoms.

While the political branches are directly accountable to the people through periodic elections, a judge must be accountable to the Constitution and the law, even when (especially when) that accountability results in an exercise of judicial power that displeases the political branches or a popular majority. If a judge must answer too immediately to a political authority, even an electoral majority, then constitutional rights and freedoms may soon become meaningless.

The judiciary must uphold constitutional and individual rights with such fairness and integrity that the people respect the judicial power even when they disagree with its results. With judges, “the consent of the governed” may come from popular elections, but can also come from public confidence in the process.

And from over two centuries’ experience with the federal system, we know that the process works: No federal judge has ever faced a popular election, but the federal judiciary commands enormous public confidence.

So it is far from true that, when the Supreme Court (or any court) passes upon legislation that has resulted from the political process, “the ultimate authority in our democratic polity appears to lie with a handful of judges and not the people (or their representatives).” The “ultimate authority” in our society lies with the Constitution, and it was “We the People” who ordained and established that fundamental law.

Without an independent judiciary, the rights that we, the people, have committed to that written constitution — the rights to which we have given the highest protection that our democracy affords — would mean very little.

 

Brian Melendez is a Minneapolis lawyer and a past president of the Minnesota State Bar Association.