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John D. Hanify
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My last turn at this column was in the midst of the impeachment process. I then made an argument that the Special Prosecutor had misused his powers by using the grand jury as a way to undertake an impeachment investigation, a prerogative reserved solely to Congress. I take this opportunity to extend the argument in light of the reaction in some quarters to the December 12, 2000 decision of the United States Supreme Court in Bush v. Gore. Rather than honoring a separation of powers, some of us may have become confused about the different powers of the branches of our government. In this confusion, the Courts are likely to take the biggest hit under circumstances where they, among the branches, are the least able to absorb it.
The Florida election problem was not caused by the judicial branch. Rather, the problem was caused by an inadequate statute that spoke to hand recounting of a ballot made for a machine. Having thoroughly immersed the Florida Courts at all levels in the problem, it became self-evident by the time the United States Supreme Court got the case that there was no uniform or sensible standard by which people, as contrasted with machines, could determine what the machines couldn’t. Virtually every judge or court which laid hands on the issue raised the question of standards by which such a count could be made and whether it should be state-wide. Gore did not want a manual state-wide recount, and Bush raised that prospect only to confirm the unfairness of recounting just some of the votes. The Courts could not change what the litigants asked for, nor should the courts have been expected to write standards missing from the statute and not requested by the candidate seeking the recount. The United States Constitution assigns no role to the judiciary in the event of a statistical tie in a presidential election.
However, we expect our Courts to solve these problems when our political representatives cannot or will not. The presidential dead heat is not the only example. It is the Courts, not the legislatures, that have served as the means by which some measure of national gun control was achieved. Congress could not solve that problem, but the Executive branch used the Courts as a method of achieving through litigation what could not be accomplished through legislation. Cigarette manufacturers have been brought to task not by federal legislation articulating a national policy about the indisputable harm of smoking but by a collection of states using the Courts to establish a public policy that elected representatives would not or could not establish. This may mean that the Courts are remarkably adaptive, but it is more likely the case that we are using our courts because we cannot formulate effective public policy in our legislatures. Although the benefits of litigation against cigarette and gun manufacturers may be widely acknowledged, there is a danger in relying upon litigation to establish public policy when the legislatures will not.
The United States Supreme Court, if not the Florida Courts, were wrongly perceived to be the problem solvers of the Florida election. Ironically, the United States Constitution explicitly vests final authority to select state electors in the hands of state legislatures. So why all the pressure on the Courts? For such purposes, some of us seem to like our Courts better than our legislatures. The lack of social consensus or legislative will respecting issues important to some of us has resulted in the gradual obsolescence of the legislative process, consigned to deadlock and control by special interests. Rather than eliminate the dominion or control special interests exert over legislative bodies, we may be too readily inclined to enlist the skills of lawyers to frame claims placing a social question in litigation where financial consequences can force policy changes. This alternative works for those limited few among us who are able to manage and afford access to the Courts.
But this is not the best way to make public policy. For one thing, it eliminates public debate and relegates policy making to litigants. For another, it makes reform the product of those who can effectively manage a legal system without reliance on the traditional public processes of a representative democracy. The independence of the judiciary is also what makes it unsuited as a replacement for policy making failures of legislatures. Most judges are not elected and not accountable to the electorate - a fact which makes them uniquely suited to resolve disputes about the law but not make it. When we expect the Courts to make our policy or serve as institutional Solomons, we confuse their role with those in the legislative or executive branches elected by popular vote.
Courts can’t and shouldn’t fill in the blanks missing in the Florida election laws or on the ballots. These are steps best taken through elected representatives, through the formulation of public policy in public forums that facilitate consensus building- a critical dynamic now missing in too many legislative bodies, including, most conspicuously, the United States Congress.
