The Judiciary is the system of courts that applies and interprets the law in the name of the state. It is also known as the court system or the judicial system that does not require of making laws or enforcing laws. The blindfold Lady Justice is the symbol of the Judiciary. Fineman gives us a whole new idea about the Judiciary in the chapter 6: “Who Judges the Law.” A country without judiciary cannot run a proper system and make balance within its branches. The people of this nation never wanted to be governed by a kind, queen or a ruler. People chose to be governed by the constitution and its words (p. 111).
As Fineman says, “Every nation needs a sovereign; ours is the constitution (p. 111).” But there is a paradox which is the law in theory is above politics, but it also governs our life, so law definitely is politics (p. 111). The paradox creates an American Argument about the law and the Constitution and the Judges who apply the law. The question arises that who should judge the law and if it is the judges then what rules should judges follow. Fineman says that the founders launched the Revolution and it created a vacuum of legitimate authority that they sought to fill. The phrase “we the people” is the key to understand what they were up to and they chose to do so by claiming that the new Constitution came from the people. The central point of the American Argument in Law is that our nation is the first nation in the world, which declares to be ruled by the words. The words of the Constitution are similar to sacred words. The words, which are written by not the God but the people, are more than words as they are alive (p. 112).
The chapter started by telling about John Roberts who has nominated by President George W. Bush (p. 108). His political pedigree with Bush family was for a long time. He proved himself as a valuable figure to the Bush administration by reversing a decision of a U.S district Court in D.C about Hamdan case. Hamdan was a Yemeni who had been Osama Bin Laden’s bodyguard and driver during the 2001 Afghanistan War. He was captured during the war and had been kept incommunicado at Guantanamo Bay (p. 110). He was a fair game in the eyes of the Bush-Cheney White House because he had never worn a uniform or fought for a country. Roberts and his judge panel ruled that Hamdan could in fact be tried in secret by the tribunal because Al Qaeda members are not protected by the Geneva Convention. To avoid public controversy of becoming both the author and the writer of the opinion, he deferred this option to his colleagues Judge Randolph (who wrote the decision). But the Bush administration knew that who the real author was.
According to the Hamilton, the Supreme Court was the weakest branch in terms of its ability to exercise power or money (p.113). But in the same time, he admitted the opposite opinion that the Court represents the people, not the legislature, or the president (p. 113). But Hamilton’s fear of human soul and society might affect the judges and the court. So he argued for a set of strict rules of Interpretation (p. 114). But still the set of strict rules and precedence does not prevent all. We know that the Declaration of the Independence and the Constitution were written primarily by Lawyers. As a matter of fact, they knew then and know now, “how to use supposedly neutral principles of jurisprudence to achieve the ends and aims they seek (p. 115)”.
“In America, judges are not above politics, but they sometimes come close to drowning in it (p. 116)”. If we look back to the list of the United States Supreme Court cases, we can understand that how these decisions were made. Judges have the sole power to use or misuse any tool of interpretation. As the judges have no headaches about their job positions and they do not have to think about any election, reelection, vote or campaign for their positions too. They appointed in their position for life time. So there are possibilities for the judges to get connected with politics and its process. From FDR’s “Court Packing Plan” to the role of the court in Bush’s 2000 “Victory” give us a clear image of that scenario. Overall, judges are related to the politics, so the law is political.
Fineman, Howard. “Chapter Six: Who Judges the Law?” The Thirteen American Arguments. New York: Random House Trade Paperbacks, 2009. 108 – 124. Print.
“Judiciary.” Wikipedia. Wikimedia Foundation, 24 Oct. 2014. Web. 27 Oct. 2014. <http://en.wikipedia.org/wiki/Judiciary>.
“List of United States Supreme Court Cases.” Wikipedia. Wikimedia Foundation, 25 Oct. 2014. Web. 27Oct. 2014. <http://en.wikipedia.org/wiki/List_of_United_States_Supreme_Court_cases>.