googleplus linkedin pinterest snapchat vimeo youtube
utulsa.edu

Dean authors editorial on strong judiciary

In an editorial published Sunday, April 23 in the Tulsa World, University of Tulsa Law School Dean Lyn Entzeroth weighs in on how “A strong, independent judiciary still protects us from despotism.”

TU Law Dean Lyn Entzeroth

Since his inauguration, the battle between President Trump and the federal courts has captured the public’s attention. Notably, President Trump referred to a U.S. federal district court judge in a tweet as a “so-called judge,” a description that many perceived as an attack on the integrity of the federal judiciary. This controversy notwithstanding, a president’s ability to ultimately respect the independence and authority of federal judicial review is a long-standing, well-established constitutional principle that is pivotal to our country’s stability and well-being.

One of the hallmarks of the U.S. Constitution is the establishment of three separate yet co-equal branches of government: the executive, the legislative, and the judiciary. Each branch serves as a check on the other branches with the ultimate objective of preventing the concentration of power in any one single branch. The checks and balances created by the separation of governmental powers play a critical role in protecting our liberties and freedom.

The importance of the independence of the judiciary in protecting liberty cannot be overstated. In Federalist Paper No. 78, Alexander Hamilton observed that the independence of courts is essential and “is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humours which the arts of designing men… sometimes disseminate among the people.”

 Article III of the U.S. Constitution enshrines the principles of judicial independence, and Article VI of the Constitution assures that the Constitution is the “supreme law of the land.” Often federal district and appellate court judges, including U.S. Supreme Court justices, are referred to as Article III judges. This reference means that these judges are constitutionally appointed to their positions and have the authority invested in them by the U.S. Constitution. As early as 1803, the U.S. Supreme Court recognized that in the United States no one — not even the president — is above the law or the Constitution. Moreover, laws or executive actions that are “repugnant” to the Constitution cannot stand, and the Constitution authorizes federal courts to strike down such unconstitutional actions.

Of course, finding an executive action repugnant to the Constitution can ruffle the feathers of a president. President Trump is not the first, nor is he likely to be the last, president to be upset or frustrated by a federal court decision. It is a mark, however, of the strength of our nation that presidents, like all litigants, abide by court decisions, including adverse decisions, and seek relief through the normal judicial appellate process or other constitutional avenues for relief.

One dramatic example of a president accepting an adverse U.S. Supreme Court decision is United States v. Nixon. In this case, the Supreme Court ordered President Richard Nixon to turn over secretly tape-recorded White House conversations. Now President Nixon was no push-over, and he vigorously fought in court to keep the tapes secret. He also knew that the information in the tapes would cost him his presidency. Nonetheless, President Nixon complied with the Supreme Court order, turned over the tapes, and ultimately had to resign from office.

It is not the purpose or intent of our constitutional structure to permit a president to act without restraint or to deprive individuals of judicial recourse when they have been wronged.

As Hamilton said in Federalist Paper 78, judicial independence is an “excellent barrier” to “despotism,” and “it is the best expedient which can be devised in any government, to secure a steady, upright and impartial administration of the laws.”

Regardless of who is in the White House, recognizing that a federal judge is fulfilling his or her constitutional role by ruling on the legality of a law or action is essential to the rule of law and American democracy.

Lyn Entzeroth is dean of the University of Tulsa College of Law and a member of the Tulsa World Community Advisory Board. Opinion pieces by board members appear in this space each week.