Another member of the constitutional convention, Oliver Ellsworth of Connecticut, speaking in the ratifying convention of his state, said:
The constitution defines the extent of the powers of the general government. If the general legislature [Congress] should at [any] time overleap their limits, the judicial department is a constitutional check. If the united states go beyond their powers, if they make a law which the constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void.
A simple design – magnificent in concept. And yet a design we have both embraced and lived with most uneasily. Hamilton’s argument contains a fundamental concept that is antimajoritarian, limited as it is. We believe deeply that democracy is about the will of the majority and find it difficult to accept the courts as having the authority to ever limit that will, but it is so.
After the Supreme Court’s decision in Marbury v. Madison, Thomas Jefferson wrote that the judicial branch of “government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is . . . by sapping and mining slyly and without alarm the foundations of the constitution, can do what open force would not dare to attempt.”
Almost 150 years later, just before he tried to pack the Supreme Court, Franklin Delano Roosevelt would say that America has “reached the point as a nation where we must take action to save the constitution from the court and the court itself.”
After the court’s decision in Brown v. Board of Education in 1954, there were calls to abolish the lifetime tenure of judges and to strip the court of jurisdiction in cases involving public education.
And now, 50 years later, there is talk of “mass impeachments,” of limiting the jurisdiction of judges. We hear phrases like an “arrogant, out-of-control judiciary” and a “judiciary run amok.” there are questions about how legislators should “punish” judges.
I am not suggesting that criticism or open debate about our constitutional values is inappropriate – it is part of our heritage also, and it is healthy. What I am saying is that angry rhetoric, and the power of the media to bring that anger and intemperance into every home in this country, frightens me. I am afraid that we, as a people, are losing sight of our heritage, and our values.
The strident attacks on the third branch, because they reach from coast-to-coast, have the capacity to undermine confidence in the judiciary at every level. We are all affected.
Yet, in New Jersey, judges live by a strict code of judicial conduct, probably the strictest in the nation. Judges cannot accept any kind of outside employment; they cannot attend partisan functions; they cannot talk about their decisions. When attacked, they cannot defend themselves or the office they hold.
That is why, today, I am urging the bar to speak out for judicial independence. You have chosen to dedicate your lives to the rule of law. You have sworn to uphold the constitution. You, better than most, can explain to those who will listen, the critical importance of an independent judiciary, one whose decision-making is grounded in the law, in precedent, in our constitution. It is my great hope that you will speak out.
I will close with a related and equally important concern.
Regrettably, recent events have reinforced the idea that intemperate attacks full of hate create a toxic atmosphere that leads to physical violence. The threats made against judges who make unpopular decisions, the recent horrific murders of court personnel and even a judge’s family members, are symptoms of an unacceptable loss of respect for our system of justice.
Deeply troubled by these events and the context in which they occurred, in recent months – with the cooperation of the executive branch – we have undertaken an expanded review of courthouse security. At this point, full weapons screening is in place; armed officers are present during all criminal, family, and special civil courtroom proceedings, and for all hearing officer proceedings. We anticipate that there will be additional recommendations to enhance security when our review is complete.
We do not take our safety, or yours, lightly, and we ask that you accept any minor inconveniences that those added measures bring.
On behalf of the court, and the entire judicial family, I want to convey our appreciation to the bar for supporting us in that effort, and in many, many others.
Thank you.
