About the Judiciary

We have three branches of government.  The lawmaking branch is the legislature.  While the administrative branch also participates in law making, that is not its primary function.  Similarly, the judiciary’s function is not to make law.  Certainly, in interpreting existing law it affects the laws already made, but there is a key difference between creating or enacting a law and interpreting or applying a law already in existence.   The judicial branch of government acts as a check and balance for the other two branches, its role is not to usurp the functions of those other two branches.  If or when it does so we have a significant wound afflicted to our system of government. 

Good judges do the best they can to put their personal beliefs and emotions aside and interpret and apply the law that is written, even if they do not like that law or the result to which its application leads.  Judges of the lower courts (trial and lower appellate courts – the Federal District Courts and the Federal Circuit Courts of Appeal) are bound by the decisions of the higher courts within the system.  Thus, the District Courts must follow the decisions of the Circuit Court within whose region they sit.  And both must follow the decisions of the highest level appellate court in the system – the U.S. Supreme Court.  Again, when judges fail to follow necessary precedent and instead let their personal feelings rule the day they are inflicting a serious wound to our democracy.

Yet, that is exactly what seems to be happening with the most recent decisions barring implementation of Trump’s immigration ban.  Some judges, like some of the populace, do not like the President’s temporary ban because in their minds they see it as discriminatory, or as disruptive to the flow of foreign students to universities, or disruptive of tourism, or perhaps simply inconvenient to those it affects.  They are certainly entitled to those opinions, but they are not entitled to apply those opinions instead of existing law; they are not entitled to rule because of their personal feelings instead of following clear statements of law and precedent. 

Fortunately, we have an appeals process, and it is unlikely that these most recent opinions will ultimately stand.  But, in the meantime we are all wasting time and effort that could be better spent on deciding real legal controversies.  This is just one piece in what seems to be a much broader effort, whether concerted or not, to disrupt any act taken by the current administration and to undermine any and everything that it does. 

This is exactly why we needed the change signaled by the election of President Trump.  If we become a nation ruled by feelings and emotion rather than law, if we apply law only when we like it and disregard it when we don’t, then we are no longer the American democracy which has stood as a beacon of freedom for over 200 years. When we let someone, and especially a judge, make decisions affecting our nation based on personal feelings, or by inciting the feelings of others to allow taking an action, whether legally justified or not, we are supporting either the potential for dictatorship or for anarchy.

The past eight years saw us turn to an emotional, anecdotal, feel-good approach to policy-making and leadership.  Laws were not applied equally; rather, there was a picking and choosing of what laws to apply and when to apply them in order to serve policy purposes or to further an agenda of identity politics.  This use is devastating to a democracy.  The people perhaps wizened up and looked for a change.  The current administration has said it will apply all the laws as fairly as possible to all the people.  Why not let them do that instead of trying to set up land mines for every step they take, and in so doing, blow up the very democracy that is allowing the freedom that those land mines are destroying, allegedly in the name of democracy and freedom?  We need to support our democracy, which includes a legal system based on law, not emotion alone, rather than working to undermine it or applauding when others do so.