The latest front in this ideological war on the judiciary has opened up in South Dakota where a group calling itself "J.A.I.L. 4 Judges" has completed a petition drive to put a constitutional amendment before voters in November. If approved, a special grand jury would be created with the power to review judicial decisions and penalize those judges who issue what it considers "wrongly decided" rulings.
To quote from Slate magazine:
A special grand jury - essentially a fourth branch of government - would be created to indict judges for a string of bizarre offenses that include "deliberate disregard of material facts," "judicial acts without jurisdiction," and "blocking of a lawful conclusion of a case," along with judicial failure to impanel a jury for infractions as minor as a dog-license violation. After three such "convictions," the judge would be fired and docked half of his or her retirement benefits for good measure.This would be a dangerous enough idea if it were adopted solely in South Dakota. But Slate reports that there are certain groups who are watching this proposal with great interest. If it does well - that is, passes - these groups intend to introduce similar voter initiatives in other states.
Imagine the implications of such an intrusion on the independence of family law courts and judges. The issues that are taken up in family courts are among the most emotional cases that vex the human heart: the dissolution of marriages, the custody of children, etc.
In the family law realm, the public NEVER knows all of the facts of a divorce or custody case. Husbands and wives going through the process frequently feel that they are always right; maybe that's why they couldn't stay married in the first place. It is extremely common for litigants to give very self-serving versions of how they "got taken to the cleaners' in a family law case and even more common for them to characterize any ruling against their position as proof the judge is "biased" or even "corrupt."
I can think of many examples of a litigant in family law who, after losing in court, has tried to take his case to the public at large, claiming injustice was done to him. They try to get media coverage of their case, or to enlist the public in a campaign to either have the court reconsider, or to have an appellate court rule in their favor.
This is fine, up to a point, because sometimes judges do exhibit bias and cases should be reviewed. But we already have a system to do just that, with appeals and judicial commissions that now oversee judicial (mis)conduct.
But imagine that there is a legal body outside the judicial system empowered to take up and review such emotion-laden cases. How would such a thing work - how would "trials" of judges be conducted? Would the judges be allowed to present evidence in their own defense? Would the review of the judge's action necessarily open the disputed case to public scrutiny? Would sensitive information, including personal data about the litigants' finances and spending habits be made public?
Not very long ago here in the South, individuals who had complaints about how the judicial system could always find a vigilante group, like the Ku Klux Klan, to supersede the courts and deal out the "justice" they felt had been denied them. There is very little difference between such vigilantes and a "jury" of laypersons set up to second-guess judges to appease a mob's sense of justice.
This is, to my mind, the very essence of the current ideological war on judges; a vigilante movement to eliminate not only judicial independence, but also to eliminate judicial review of legislative action, which is an integral part of our system of checks and balances. All to obtain what a majority believes to be justice; a codification into law of the tyranny of the majority.
The reason the judiciary is independent in the first place is to avoid this 'second guessing' by persons with agendas. If we empanel these special grand juries we might as well do away with the judiciary - and go back to trials by fire (if your feet don't burn, you must not be guilty!).
We seem to be walking on the brink of a precipice in which ideologues are using increasingly emotional appeals to the electorate to endorse their plan to revolutionize - that is, destroy - the independence of the judiciary. And the more passionate these forces become, the more they stir the emotions of people whose passions turn to "vigilante justice."
Not long ago, both Associate Justice Ruth Bader Ginsberg and former Justice Sandra Day O'Connor revealed that they had been the targets of death threats from the "irrational fringe" of society, people apparently spurred by Republican criticism of the high court.
Should the movement now afoot in South Dakota gain traction, we will be far along a road that takes us away from our Anglo-Saxon traditions of jurisprudence. Making a judge's rulings, especially those made in family court, subject to what the majority thinks strikes at the very heart of a Republic such as ours.