HomeMy WebLinkAboutCC 1978-04-27 Disussion ItemEditor's Page
Dictatorship by Judiciary?
By Marvin Stone
\\'t. ,t} tee with a number ut lair readers who
bchte%c the Lk wits are exeteising more .untr„I
than is normal or desirable, .t subject espioted
recently in this magazine. lint we do not share
an immediate ter that the t' N.A. is 1",citi.;
turned into a "dictatorship by she
Ot ;rc,tte•r concern at the moment is that the
Itgislattve and executive branches of guvert:-
ment—federal, state and local —are abdicahn,c;
their respionsihilitie•s by running away from
thorny issues, thus leaving it to the courts to
make the politically distasteful decisions.
WILY shuul.I the .,sorts ht-• ictt to ,;refsie Low
to run schools, prisons and hospitals? Can
judges sustaua this heavy load?
Suct,al chan..;c may in this trine be at us hl,c;h
est })itch said.: the days of John Marshall, and
the result is much the same. ()Id rules, written
and unwritten, are giving way to near cxpe:1%1-
t1uns and imperfectly understood lases. (:our is,
as the point of resort for persons who thank
they have I)cen vi.tinuzcd, inherit the duty to
see that"justie" is dune.
Consciousness of this juob;c•n) .tt1.t its origins
has penetrated even to popular literature. In ,t
new cunedy,"First .Ntond.ty to ().totter," a fe-
male Justice of the Supreme Gant cites the
historic precedents for activism and demands,
"isn't this nation's whole mural house ablaze!
... t call that a real fire and we Move: ati
obligation to put it Out —or are we just going t.)
sit around playing; pinochle:.. Incidentally, she
portrays a conservative.
Shirley I tutstedlcr, ,In outspoken federal .ap-
peals judge, makes this point: "Resolvingi :on-
fh.ts between people ... t, u;t a popular
l)ee.uise there .are always losers. That's achy
sunie laws .ire deliberately' phrased in such
vague tat hion. legislators understandably pre-
fer to delegate these hard choices to someone
else —namely, judges.'.
The current surge of intervention by judges
arises, as (lhief..lustiic Burger analyzes it, "in
p.trt from the overwhelming demands put upon
the (..Ingress to vise ,ti't isms:, of n.•w prod,
tionietsilics . tt c st.,:sale has gaps In
it, and .. (.H-ta;e, Ilse to till thine
1•.:1 as he expressed it Ill i):, re.eiK.ti„e:,t
. „ ,.o rile t
not e it,:ely }deaf e.1 trio) ,ome,•f
for taken;.; to themselves i`.,' er,
properly be exercis0.t by (.congress ,ut.i the e\-
ecutave branch.
Even sorne of the inns:, who ui;cis,:‘..' ,i,).
not contend That so mink power n„1';,l,,l; j hi... -
longs to them. Judge Frank 11. J,)lft,u,i:, .Ir.,
who tr.t, headed for .Iarc.rorship of the Flit
ul;til his health ti;terferc.i, e\pla:;;s he
took ,)ter administration of a tr.)ul.;c, r..ent.tl
h.,,pit,ta u) Ahthuna.
"In an ideal society, all of these j...1. metals
and deeisauns should ise m.).le, in the t,rst ut
stance, by th.),e to srho:n •,c'e h.tte cut;aste.d
thcst res}s,11111b)itue,.... t it,wc vet . t'hc ri
governmental institutions fail to make these
ju.lgtt)c•:tts and decisions in a manner \Ouch
comports with the Constitution, the te.lrr.i!
courts have a duty to remedy the viol.tuon."
To try that case, Johnson 11...1 to ,,)hit the
ani ut three outside agencies. It t,,.)t: the
lengthy trial, a ruling, proposals formulated by
the disi,utt::g parties ,and by friends „ t the
cuut't, lapse of tiro deadlines, tuttliel- .).non
and constant vigilance to bring "a.....vLa!)lt
pro ;cress." But that is not surprising. A writer
in the !l.r):.:t.r l..r:, ii:.:,.. c•lt t'1.ues th.tt It)
years of supervision may be required for a
remedy n such cases.
At .a time when routine trio!, are it,l.,;nla by
l.l.tyed by c',,,tii;c.i•up d,).kets, it .)..)es not
make sense ft>r courts to tic sw•,riti}",eti with
work that should have been clone right by leg-
islators or local governments in the first pt..ce.
Perhaps when lite jells in its iiew• mold, the
load will lighten again.
in .any event, we trust r..•tusc I.) .a.-cept pros•
ehit conditions as normal .and permanent. air
else they may become jut that.