In defense of the judiciary
Flag on the play
No matter your political beliefs, there can be no doubt that we are living in incredibly polarized times. Friends and family, whether Republican, Democrat, Libertarian or Green Party members, have all commented on the erosion of basic civility in public discourse. I certainly share their concerns. But as an attorney, I also know that we are the world’s longest-running republic because our founding fathers took great pains to craft a durable system.
Frequently, this system is described in nebulous terms, such as “checks and balances.” I find it more useful to think of it as dynamic tension. Our three branches of government — executive, legislative and judicial — were created as coequal institutions. The executive branch has some unilateral authority and an army at its command, but must defer to legislators on larger policy questions, and to fund that army. The legislative branch has much more policy-making authority than the executive branch. It can also hedge presidential initiatives through the power of the purse. But it cannot use the armed forces to implement its will. Meanwhile, the judicial branch controls neither our coffers nor our military. It has the authority to strike down any moves by the other two branches to unconstitutionally limit our freedoms.
That’s Civics 101. What many people don’t realize, however, is that our government operates entirely on an honor system.
Traditionally, our congressmen and senators have understood that for our government to function as intended, they should not engineer a military coup if they don’t like the president, or attempt to financially starve the Supreme Court out of existence if they don’t like a ruling. Our Supreme Court justices have understood that they should not comment on policy until they are presented with a constitutional question. And our president has understood that despite any differences he might have with Congress or the Supreme Court, he should acknowledge the legitimacy of these institutions.
Unfortunately, we are beginning to see this baseline understanding erode along with our political civility. Disagreement is not just healthy — it’s essential to the functioning of a fair and just system. In fact, the founding fathers designed this republic to be fueled by argument. But no matter our political beliefs, it is incumbent upon us as attorneys to vociferously defend the role of the courts at all levels of government. We have witnessed disputes, argued merits, defended clients — we understand that fair, impartial courts keep the structure of our government strong.
Take sports — we are fiercely loyal to our team, to our favorite players in the game. But no sports fan really likes referees. When there are tough calls to be made, one side is always unhappy. Although refs strive for fairness, they sometimes make questionable, or outright bad, calls. But without a referee, it’s not a game — it’s a melee. That’s the role judges and justices play in our democratic system. You might agree or disagree with individual calls. Just as a sports fan might think a ref is “blind,” we might question an individual justice’s understanding of the Constitution. But at the same time, these jurists are essential to upholding “fair play” in our system.
Regardless of your training or career path, a period of great social change creates an emotionally charged uncertainty about the future. And it is in times like these that trust in a fully legitimate, fair-minded judicial system is needed the most.
Arnold “Skip” Kenyon III is president of the Iowa State Bar Association and in-house counsel at Iowa State Savings Bank in Creston.