All democracies comprise of three main organs of governance namely the executive, legislative and the judiciary. The political processes of any democracy are operant through the executive and the legislature with the judiciary playing the role of a referee. The constitution of America very clearly defines the role of the Political executive – the President, the legislative roles of the Congress and the judicial roles of the courts. Since the correct operation of the constitution requires adherence to law, involvement of the judiciary is a logical corollary.
However, political processes are subject to human dynamics and at times the judiciary has to step in to check the excesses of the system. This process can lead to dissonance between constitutional propriety of judicial involvement in the political process. Karlan states that “Because democratic politics is not autonomous of existing law and institutions, those who control existing arrangements have the capacity to shape, manipulate, and distort democratic processes”(p. 1193).
This essay aims to explain the necessity of judicial involvement in the political processes of a democratic country with the American model as the illustrative example.
The involvement of the courts in US electoral processes first came to fore in the tenure of John Marshall, Chief Justice of the United States from 1801 to 1835. According to Murphy & Epstein (2002), “ Marshall successfully asserted in Marbury v. Madison (1803) the great power to declare congressional statutes unconstitutional, while making judicial review appear to be nothing more than a simple ministerial act”(p. 2).
With that precedence, the Baker v. Carr decision, 1962 forever brought the courts firmly into the political process, the decision held that “(1) the Court possessed jurisdiction over the subject matter; (2) that appellants had standing to challenge the Tennessee apportionment statutes; and (3) that a justiciable cause of action was stated upon which relief could be granted” (Ansolabehere & Issacharoff, 2005, p. 17).
Since then courts have regularly involved themselves in the electoral processes which ranged from regulation of political parties, issues of partisanship in electoral institutions, race politics and elections, electoral ballots, financing of electoral campaigns and most recently in the Bush versus Gore infamous ‘hanging chad’ incident. The US legal traditions draw heavily from the “legal realism” movement of 1920s which stated the connectivity between law, the legal system and the political process.
The proponents of the legal realism school reasoned that since laws are open to differing interpretations, judges at times have to look for answers beyond the narrow confines of written law and look at the social atmosphere prevalent at the time. “When parties ask courts to resolve these sort of disputes, they are, in essence asking judges to monitor or review governmental action”(Murphy &Epstein, 2002, p. 46).
The same principles were applied during Roosevelt’s times which Rehder explains, “For the US- American debate on the power of the courts, the Roosevelt era is still crucial, because the Supreme Court abolished the social policy and labor law legislation of the New Deal government”(p. 9). While the US Supreme Court repealed most of the legislation it did indulge in some accommodation of the political executive by accepting regulatory state policies.
This ‘adjustment’ was basically done to stave off Roosevelt’s plan to increase the number of Supreme Court judges from nine to 15 which would have given him leverage to nominate his backers in the apex court. A Supreme Court judge having liberal values may view the legality of abortions differently from a judge with a conservative conviction. To give an example “Justice William J. Brennan decided cases as he did because he was liberal; Justice William Rehnquist or Warren Burger, because they were conservative” (Rehder, p. 12). Even state judges have involved themselves actively in the political process.
Murphy & Epstein (2002), state that “ One scholar estimates that state justices invalidate nearly 25 percent of all laws challenged in their court rooms”(p. 47). Judges and experts have argued that courts have to step in to safeguard the rights and uphold the correct interpretation of law in the fields of social justice and it has the same responsibility to step in the electoral processes to safeguard the functioning of the US democracy. Political scientists have long argued that activism on part of the judiciary weakens the other two arms of the government.
This paradox is succinctly pointed out by Murphy & Epstein (2002) who state that ” Judges, who are except in most American states, not directly answerable to the electorate, declare unconstitutional acts passed by officials whom the people have elected – hardly a democratic outcome”(p. 51). This model is no longer restricted to the United States. Taking cue from the US interpretations of political and social Jurisprudence of the courts, legal fraternity in Europe and rest of the democratic world too has resorted to Judicial Activism including the electoral process.
Boulanger very aptly puts it that “All over the world Constitutional Courts or similar institutions have been given the power to declare acts of the executive or laws enacted by the democratically legitimated legislature unconstitutional”(p. 1). At present it is too early to determine how healthy this trend is but for now the place of courts in a democratic country’s political process is well established the world over and in particular the United States.