Leave the courts out of politics
| March 10, 2023 7:00 AM
A friend of mine once told me how he had become a drunk.
After taking his first drink he said, “I began to feel so good, so happy, so powerful that I wanted to feel—even better!”
Substitute political power for drink.
It is even more intoxicating, and like drink, you can never get enough of it. But unlike drink, which is basically limitless, political power is limited by the desires of other people to have power, and often they get in each other’s way and fight over who gets to have the most power.
They are greedy. They are ambitious. One of America’s founders, James Madison, saw this as human nature and while there was not much that could be done about that in individuals, in governments there was.
“Make ambition counteract ambition,” wrote Madison, so that governments were obliged to “control themselves.”
This is the core necessity of limited government.
And so, in the United States Constitution we created three branches of government, the presidency, Congress and the courts, each with great powers, but each also subject to being reined in by one of the others, each independent, but not all-powerful.
One branch does not do the bidding of the other. And because of this internal competition, our government moves slowly, as it was meant to.
Here in Montana we are being inundated with legislation that would undo years of thoughtful policy built up during years of divided government, such as when Republicans controlled one branch of government and Democrats another.
In general this led to that much maligned word “compromise” that true believers of any political stripe hate. Perhaps they have never been married.
Compromise is necessary because there is nothing on earth that is purely black or white, even those non-colors have gradations within them.
This is by way of saying that there is never a “one size fits all,” or if there is, it fits most people poorly. Montana is now governed by Republicans who have the ability to pass whatever laws they like without even a nod to the Democrats. That’s been the case in Idaho and Wyoming for years, and I’ve always thought that those states were doing OK for their citizens.
Even with one-party rule they governed with a sense of moderation, largely, I felt, because if they screwed up it wasn’t hard for the public to figure out which party to blame.
In Montana, however, while the Republicans have virtually done away with their Democratic political opponents, they still have an enemy which stymies their ambitions from time to time, that would be the court system, which is elected without party affiliation.
However, because the courts often override Republican legislative acts by finding them unconstitutional, the Republicans believe that judges are acting politically. Therefore, Republicans are making an all-out effort to make sure that only judges are elected or appointed who agree with the beliefs of the Republican controlled Legislature and the governor.
One way is by making candidates for court offices declare a political affiliation, another is by making it harder for judges to keep laws from going into effect before their constitutionality is ruled on by the court.
They are pursuing a path that has been twice rejected by Americans, which is to gain political control of the court.
In 1936, after the Supreme Court found that his government expansion programs were unconstitutional, President Franklin Delano Roosevelt pursued the idea of adding new Justices to the Court who would agree with him.
In 2020 Democrats considered adding Justices to the Court to counter the political leanings of the three Trump appointees.
President Joseph Biden disagreed. In both cases the American public objected and the ideas were dropped.
What’s happening in Montana is no different. Because they have been contradicted by the court, the governor and the Legislature want to create a Court that agrees with them.
But the court is not supposed to agree with laws passed by the legislature. That was established in 1803 in Marbury v Madison which held that legislative acts were subject to judicial review to determine their constitutionality.
This is dangerous. Ambition needs to counteract ambition.
Without that, we are back to King George III governing Americans unchecked.