Judicial Independence and the Substance of Democracy

On August 4, Federal District Judge Vaughn D. Walker overturned Proposition 8, the now-famous measure that amended the California constitution to ensure that the state would only sanction marriages between a man and a woman.

Many people have come out against the decision. One of the most popular arguments against the ruling is that Judge Walker showed blatant disregard for the will of the people.

“By overturning the original vote, Judge Vaughn Walker has merely shown that the courts no longer listen to the voice of the people”. – BYU Student as quoted in the Daily Universe

I understand the frustration. After all, many proponents of traditional family values, including The Church of Jesus Christ of Latter-day Saints, fought a difficult battle in California to ensure passage of Proposition 8. It can seem incredibly un-democratic that one man could quickly overturn something that millions had struggled to achieve. Democratic, however, is exactly what it is.

The judiciary does not exist to directly reflect the “will of the people”. “The people” do not elect judges. This is no accident. Judges are supposed to make their decisions based on the legal merit of the arguments, while respecting precedent and existing law, especially constitutional law. They are not supposed to be influenced by voters, businesses, or politicians. They don’t need to worry about who funds their campaign, whether their constituents will appreciate a certain ruling, or whether their party leaders will promote them to a coveted committee position for their performance.

An independent judiciary is an indispensable component of a strong American democracy. We believe that there are certain limits on all types of power – even the power of the will of people. This point is best illustrated by example. Imagine that the year is 2014 and there is a new proposition in California; let’s call it Proposition 13. Proposition 13 would make it a crime to say that homosexuality is a sin. The proponents would argue that when religious ministers or other say that homosexuality is a sin, they are using “hate speech” and attempting to incite violence against gays. The proposition passes by a sizeable margin, clearly demonstrating that the “will of the people” is to outlaw calling homosexuality a sin. Then, soon after passage, an LDS Bishop is arrested for the crime of saying that acting on homosexual desires is wrong – that it is a sin. His conviction is appealed and it reaches the 9^th Federal District Court. The judge on the bench hears the arguments and then overturns Proposition 13. She writes that the proposition is in clear violation of the First Amendment, which bars the government from impeding the “free exercise” of religion. If a person’s belief, she argues, is that homosexual acts are wrong, then they have the right to express that belief.

In our example, this judge clearly acted against the will of the people. The majority of voting California citizens sent a clear message when they approved Proposition 13. How could she overturn the law? Doesn’t she believe in democracy? Where is the accountability?

One of the import roles of the judiciary is to defend the rights of minority groups. Tyranny of the Majority is a real threat, not some antiquated, elitist notion. Hugo Chavez, for example, has often enjoyed the support of the majority of Venezuelans as he has trampled on the media, sponsored political motivated arrests, and used public funds to buy lavish gifts for family members.

Perhaps an independent judiciary is not necessary if we seek to merely have a procedural democracy, but it is essential if we desire a substantive democracy. That is, we could eliminate independence of the judiciary if democracy to us means simply that the will of a large number of the citizens is often reflected in the actions of the government and that regular elections are held. However, if we believe that true democracy must exist with basic human, civil, and political rights intact, we must respect the role of judges.

I’m not defending Judge Walkers decision; I am defending his right to make it. Any argument against his decision should be made on legal grounds, not on the grounds that he should have had greater respect for public opinion. Judges don’t study the polls, and I hope they never do.

Notes:

1. My example about an attempt to outlaw preaching against homosexuality on moral grounds may seem outlandish. Similar attempts, however, have been made in nations like France. If I was to explain this example to a politically-savvy person living in Belgium, France, or the Netherlands, I doubt they would find it far-fetched at all.
2. I am in favor of Proposition 8, but I don’t feel prepared yet to fully articulate that position.