Chicago Tribune: Preserving an independent judiciary

September 9, 2005

By Nancy Pelosi

The consideration of Judge John Roberts Jr.'s nomination for chief justice raises the fundamental issue of checks and balances, the separation of powers that protects the rule of law and thereby the rights of every American.  From the very beginning of our nation, power was apportioned among three co-equal branches of government: legislative, executive and judicial.

An independent judicial branch was integral to our founding fathers' inspired design of our government.  They established the judiciary to be free from manipulation and intimidation by Congress and the president, so that our Constitution and individual rights are always safeguarded.  Alexander Hamilton wrote that courts must be independent to protect individuals, including the minority, from the "ill-humors" of the majority and the legislature.  The separation of powers ensured that courts could protect our individual rights, even at times when such protections are unpopular.

Our nation's leaders should cherish these principles that Americans live by and promote around the world.  Yet as retiring Supreme Court Justice Sandra Day O'Connor recently noted, "In our country today, we're seeing ... a desire not to have an independent judiciary."

House Majority Leader Tom DeLay's (R-Texas) starring role in last month's "Justice Sunday II" telecast represents the latest effort by the radical right to undermine the independence of the judiciary and our separation of powers.  Sadly, this is part of a disturbing pattern.  In the Terri Schiavo case, some Republicans threatened to impeach federal judges for their judicial decisions; and recently some House Republicans sought to cut the funding for the U.S. Supreme Court in response to a decision they did not like.  These actions do not represent the American mainstream and they violate our constitutional traditions.

Especially menacing to our system of government are ongoing efforts in the Congress to violate the separation of powers by taking away the power of the courts to decide which cases they can hear.  This idea, known as "court stripping," is a dangerous notion that threatens the rights of every American.

Under these court-stripping proposals, federal courts would be denied the ability to review certain claims affecting individual rights or acts of Congress for their constitutionality.  Republicans want to pass unconstitutional bills and then ensure that there would be no right of courts to review them.  In effect, they want to rewrite the Constitution by simple majority.

Court stripping violates the principle of judicial review that has been a central feature of American government for more than 200 years, since Chief Justice John Marshall declared in Marbury vs. Madison that "it is emphatically the province and the duty of the judicial department to say what the law is."  The late Chief Justice William Rehnquist called this precedent unquestioned.  Yet the Republican leader of the court-stripping effort, Rep. John Hostettler (R-Ind.), has suggested that Marbury was "wrongly decided" and that an independent judiciary is an "absurd notion."

While not yet considered by the Senate, court-stripping bills have been passed by the House in recent years in response to decisions on controversial topics such as gay marriage, the pledge of allegiance and religious references.  But the real danger is to our system of government and our system of checks and balances.

O'Connor has criticized court-stripping bills, but Roberts actually condoned court-stripping efforts in the 1980s.  He even disagreed with former Solicitor General Theodore Olson, a noted conservative, who contended that a school prayer court-stripping bill was "impermissible under the Constitution."

That is why Roberts' record warrants great concern, especially now that he has been nominated to be the leader of the entire federal judiciary; he must clarify in his confirmation hearings where he stands on court stripping.

The stakes in preserving an independent judiciary are profound.  For more than two centuries, an independent judiciary has served as guardian of our Constitution, our individual rights, and the rule of law.  It is a model for the world, and a model we cannot allow to be dismantled here at home.