The Legitimacy Theory: Impartiality Of The Court

On the surface, it seems that determining how much power courts have would be a simple task. However, history has proven this to be false. The courts have been viewed in many different ways through out the history of our country. There are three common views of court power that are important for modern scholars of the court system. Those who believe courts have little power to cause social change are said to adhere to the Constrained Court view. Those who believe courts have a great deal of power to cause social change are said to adhere to the Dynamic Court view. The final, and youngest, take on court power combines aspects of the Constrained and Dynamic views into what I shall call the Condition Dependent Court view of power.

In “The Adversary Judge” Frankel explains how realities of the trial create a “role conflict” between the ideally constructed impartial judge and the realistic adversary judge (Frankel, 1976). Throughout their day people play many roles, these roles are based on the expectations of the people around them and the personality of the person (Frankel, 1976). In particular, judges are expected to play the role of neutrality, intelligence, and patience. Their role is thought to be similar of an “umpire” (Frankel, 1976). It is necessary for them to be objective in order for a just and fair trial to take place. Yet, this ideal role does not occur under the pressure of realities. One reality that pushes away the idea of an “umpire” judge is the heated emotions that occur throughout the trial process. Frankel states” the courtroom explodes as people spring up at several tables shouting objections, usually loudly because they are in some haste and heat to cut off forbidden answers” (Frankel, 1976, p. 472). The attorney’s main goals throughout the trail is to ensure a win for their client leading to competitiveness between both parties. Attorneys do not want to hear they are wrong and always need to be one step ahead of their competitors. This causes the commotion and tense emotions that is usually seen in courts.

Legitimacy of courts has long been an important factor in the judicial system. However, a more recent concern has been diversity. It is becoming increasingly important for the court to represent those who it serves. “The ECJ’s composition remains unreflective of the millions of black and migrant European Union citizens whom it serves”. Judgements of both the domestic courts of England and Wales along with the European Court of Justice, affect the everyday lives of all EU citizens – including those of minority and underrepresented groups. “Outcomes should not be influenced by considerations of political or financial consequences”. Independence is important as it is vital that each judge is able to decide cases solely on the evidence presented to them by the parties in court. Personal independence is always necessary to ensure that the judiciary as a whole of both the land or the community remains independent. In order for the courts to be fully independent, they must represent the diversity of the people and make decisions in accordance with the law with no other influences. With the growing influence of the government over the last century it has become increasingly important that the judiciary fulfils its responsibility to protect the public against unlawful acts of the government. What has therefore also become increasingly more important is the need for the judiciary to be completely independent from the government. The evidence suggests that the courts nowadays are not

This concept is built on the assumption that if judges are paid adequately, they cannot be bribed (Shetreet & Forsyth 2012, p. 19). If a judge is not compromised by bribes then he or she is likely to make decisions that are not biased. Remunerating judges lowly can cause them to receive payments and patronages from private individuals and end up ruling in their favor. In Australia, the remuneration of judges is fixed by the law and cannot be altered anytime during the time the judge is holding office. Section 72 of the constitution protects the notion for federal judges while salaries for state court judges are protected by statutes (Brand & Getzler 2012, p.

Proponents of Judicial Elections argue that electing judges at a state level allows the judges to reconnect with the people in a closer way and to be more sensitive towards public opinion. However, the Judiciary system, unlike its other two counterparts, was not created to be a democratic institution. Instead, it was built to examine whether the government or the people are acting in accordance to law. Therefore, I oppose Judicial Elections for several reasons. One, it introduces partisanship to a supposedly impartial system and two, it risks disrupting the initial purpose of the Judiciary System which is to counterbalance the steps taken by the Congress and the Executive branch with the law.

What is also interesting to note, is that the balance of power and who ultimately gets seated on the Supreme court is decided on Capitol Hill. Up until this point in the review, there has been very little discussed about how the legislature plays into the decision process of how the justices are seated (Robertson, 2004). However, as it is critical for a sitting president to have a Supreme Court sided towards the president’s political affiliation, it is equally as important to have a legislature that will also seek to have the nominee on the panel of justices. The author suggests, that this hope is quickly diminished when during the presidency, the legislature’s majority is the opposing party. The author does an excellent job in communicating this dynamic in reflecting on President Clinton’s attempt to have his justice nominees appointed during his time in office (Burke, 1993). The issues of getting nominees approved was also driven by a number of critical turnovers within the office of the presidency. This point underscores that lobbying is not limited to companies and organizations but to the power of the president to push justice nominations through the system (p.44). Finally, another aspect that was discussed that hindered the process was that President Clinton did not hold his ground and in each instance where he faced resistance, the president would remove the candidate presenting another with the hope that the new nominee would pass the nominee process

Over the years the cost of running for judicial office has become more and more costly due to the amount of money it takes to purchase commercial ads and politicking. This has made it necessary to take donations in order to have a substantial campaign here inlays the dilemma; most Texans are indifferent to judicial campaigns leaving the donating to interest groups, lawyers, and possible litigants. Making the possibility for leniency and partiality in future cases where the donators could expect a more favorable outcome in their cases in the judges court. Our book states that 86 percent of judges believed that campaign support had some influences over judicial decisions. This would mean that guilt and innocence could be bought with campaign money endangering our very way of impartial decisions.

The Supreme Court of the United States is perhaps the most eminent judicial branch in the world and has served for a model for justice and democracy. However the Court is not exempted from scrutiny, and critics question the increasing politicized nature of the Court, from the appointment process to the nature of their decisions in landmark cases like; Dred Scott v. Sandford, Roe v. Wade to Bush v. Gore. Based on empirical evidence, this essay argues that the United States Supreme Court today is severely influenced by politics and not as much by law- at least in practice. Indeed, robust partisanship of the political interests of the President and Congress imposes on the constitutional function of the Court.

Court and process: Constitutional Court ruled that the law is the prerogative of the federalism, not only reconciliation state governments. The state of government did not agree that would be their responsibility for repaid Mr. Barron. The chief justice John Marshall thought that this is not the states problem, and there is nothing to do in the side of the city of Baltimore. Mr. Barron insists that is in the faith amendment and it should be until the bill of right of the state government, and the federal government were unsure of the faith amendment was so clear. However, after the civil war the state of government made the fourth amendment that the state can’t take any bill of rights from the citizen.

Judicial Independence is fundamental to democracy, it serves as a guarantor of the rule of law and separation of power . However, nothing is perfect. There is some defect regarding to the judicial independence and solution must be made to curb the weakness.

For example, in the 1930s, President Franklin D. Roosevelt sought to expand the court and create a majority of Democrats, who, if appointed, would fervently support his New Deal program. Professor Gregory G. Caldeira (Ph.D.), in the Department of Political Science at The Ohio State University, argues in his article, Public Opinion and The U.S. Supreme Court: FDR’s Court-Packing Plan, that in this incident, there was indeed an “intimate connection between the actions of the justices and support for the Supreme Court…during which Franklin D. Roosevelt sought legislation to permit him to pack the high bench with friendly personnel” (Caldeira, 1987, p. 1139). Referring to the Gallup Polls of 1937, which showed that public support for the court substantially decreased in four months, he believes that justices tend to build up their relationship with parties in brief periods before appointment. He sardonically states that this phenomenon has become a “series of well-timed decisions” (Caldeira, 1987, p. 1141). Even though Congress eventually rejected Roosevelt’s “Court Packing” plan, Caldeira’s view demonstrates the drastic influence of the executive branch, and more broadly, party politics, on the high court. This particular case portrays that party politics are continuing to undermine the Constitution

Political scholar, William Hoffer, accurately describes the Supreme Court to have a strong influence in guiding the United States toward certain political paths. The decisions and rulings established by the Court cause a reaction affecting those within its jurisdiction. Working under the most powerful source of law, the Constitution, the Supreme Court has a heavy influence over the nation’s political fate, but all the power does not reside in their hands. While Hoffer’s opinion of the Court having a strong control over the nation’s political policies hold to be true, there is an established, complex system of checks and balances among the Court, the President, and Congress; so even though each branch holds a portion of power, their decisions may be denied or overruled by mutual agreement within the other branches. Nevertheless, every decision the Court makes has an impact on the nation, and there are several cases that built the foundation of American society and provided a strong foothold for future political establishments and positions that policymakers may base their decisions.

The problem of judicial corruption in United States is immense. The Sixth Amendment in the United States Bill of Rights refers to the right to a speedy, fair and public trial. Unfortunately, our judicial system does not always maintain these rights. The United States judicial system is very corrupt and most of our country’s citizens do not know how corrupt it actually is. When thinking about the judicial system, words that come to mind are justice, morality, and fairness. Sadly, these words are not accurate descriptions of this system. Correct depictions of today’s judicial system are corruption, rigged courts, extortion, and phony trials. Our legal system does not bring truth or justice to our courtrooms. Overcoming this corruption is not

Judicial originality is the most fundamental principle in the legal system. Judicial originality to me means being able to make a decision based off the effects. If a judge has had a case in the past similar to a current one, the judge can base his current decision using the same discretion or rule he used before. Dworkin wrote a paper about this, he argues that judges should not be able to create laws through the effect of their decisions. He has two arguments about why judicial originality is not a good thing for society. In this paper I will talk about these arguments and if Dworkin has the right to claim that this argument has no force against it.

These televised ads frequently air misleading slogans like ‘activist judges’ or ‘imposed verdicts’ just for the sake of the caustic reactions they engender. For instance, a televised ad aired in Illinois during the 2010 election season attacked the then supreme court justice Thomas Kilbride who was running for retention election for siding with felons instead of victims or the law enforcement based solely on the fact the he had questioned the misconducts carried out by the prosecution in some criminal cases. ‘Soft on crimes’ is one of the most popular and polarizing slogans used in these ads against judges. As mentioned above, these ads condemn judges for not being ‘hard on crimes’ further escalating the already existing blood-lust for criminals in society. These ads not only politicize the position of judges, but also significantly diminish the public integrity of judiciary because the public would be more unwilling to accept the verdict imparted by a judge who think is too lenient with criminals. Furthermore, these ads put undue pressure on judges to impart unreasonably harsh punishments to soothe the public hostility against