POLS 2101 – INTRODUCTION TO POLITICAL SCIENCE

 Lesson 22

  JUDICIAL POWER
Copyright © 2004 by Barry D. Friedman

(Note:  This lecture is intended, to the extent possible, to apply to the judicial authorities of all countries—not specifically to the judicial branch of the U. S. government.)
 

            As my father would say, “If you want justice, watch the ‘Perry Mason’ show.”

            Review of the powers of government: 

°      Legislative power:  power to make laws. 

°      Executive power:  power to execute or administer laws. 

°      Judicial power:  power to apply laws to individual cases.

            When a person has a dispute with another person, a private organization, or a government entity, usually the best situation is that he or she can work the problem out in a mutually beneficial manner without the involvement of the legal system.

 When the person cannot work the problem out on a mutually agreeable basis, he or she may then be in great big trouble.  The worst-case situation is when the government is bringing a criminal complaint against this person and he or she can’t work it out with the government.

 There is a Mexican curse that says:  “May your life be filled with lawyers.”

 The judicial arena is an arena created and controlled by lawyers.  It is created in constitutions written by lawyers.  Its agenda is set by laws made in legislatures by lawyers.  The stars of the show are judges and lawyers who are trained in law schools and subject to oversight by the bar association.  Inevitably, all of the processes are designed to bring satisfaction to the members of the legal profession.

 Also, because the judicial branch is part of the government, it is inescapably political.  The judges are usually elected by the voters or are appointed by politicians.  In many systems, many judges may actually be former legislators or executive officials.  They may need to be concerned about reelection or reappointment or about whether there will be reprisals from the other branches of government if the judges hand down decisions that other officials don’t like.  So what do you think causes a court to hand down a particular decision? . . .

 Laypeople who have a substantial amount of wealth—and thus the ability to purchase the time and efforts of as many lawyers as are needed—may find that the legal and judicial system brings them advantages—either justice or the ability to evade justice.  Despite overwhelming evidence of his guilt, O. J. Simpson won an acquittal by virtue of hiring a “dream team” of prominent defense attorneys and jury-selection consultants.

 Justice is much harder to come by for poor people who cannot afford legal counsel.  For a poor person, the situation just gets worse and worse if he or she is: 

°      A member of an unpopular racial, religious, ethnic, or other disliked background. 

°      Uneducated. 

°      Unattractive or, in some other way, unpleasant.

            The ineffectiveness of the legal and judicial system in providing justice becomes starkly apparent when one considers that, until the 1930s, American courts would prosecute poor, ignorant people for murder and instruct these sitting ducks who could not afford legal counsel to defend themselves.  Judges did not see fit to make the “independent” judgment that such unfortunate people should be provided with legal counsel before being electrocuted.

 The purposes of the judicial branch are generally as follows: 

°      To check the power of the other branches of government. 

°      To provide legitimacy for legislation and executive orders. 

°     To provide legitimacy for the criminal-justice system. 

°      To provide a place for disputes to be resolved, as an alternative to violence. 

°      Last, and probably least in practice, to provide a last resort for those who might be ground up by “the system.”

            Sometimes, not with any regularity, the legal and judicial system actually does block an unjust mistreatment of a disadvantaged person.  When it occurs, it’s like a bolt out of the blue.  Dramatizations of it make for good television and inspiring movies.

 Not all of the injustice created by the judicial system is the fault of lawyers.  One witness after another takes the stand and lies.  (If the witnesses told the truth, trials could be wrapped up in about a half hour, and the costs of the judiciary would be cut to about 5 percent of what they are now.)

 The ritual in the courtroom is a game that has rules.  The two lawyers generally control the proceedings—they are like gladiators in the arena—with occasional intervention by the judge sitting high above the battlefield.  The rules are established to set the probabilities of success of both sides at a certain arbitrary level.  In baseball, when the team owners and the commissioner want the batters to be more successful, so that there will be more hits and higher batting averages, they reduce the size of the strike zone.  Similarly, if the government wants to increase the probability that a criminal defendant will be convicted, it can: 

°      Reduce the number of peremptory challenges against prospective jurors. 

°      Reduce access to the defense to information available to government authorities. 

°      Reduce access to lawyers, relatives, and others who can be helpful. 

°      Allow the prosecution to present its closing arguments last. 

°      Provide instructions to jurors that are more likely to lead to a guilty verdict. 

°      Reduce the number of votes needed for a conviction. 

°     Reduce opportunities for appeals. 

The method of adjusting these variables to determine the proportion of defendants who are found guilty is part of a methodology that regulates a trade-off.  The question is:  How many innocent people are we willing to convict to avoid one guilty person getting off scot-free?  The system can be tweaked to adjust the ratio.

 One of my students in the “American Government” course years ago told me about a debate in which he had participated in high school.  The members of his debate team concluded that they were willing to accept capital punishment, understanding that some innocent people will be executed, because of the benefits gained from executing actual murderers.  (I acknowledged his and his fellow debate-team members’ intellectual honesty.)  The judicial system really is a game of chance, like spinning the wheel of fortune.

 Lest anyone think that the judicial system naturally has more commitment to justice than the “political” branches of the government, keep in mind that the U. S. Supreme Court was a major enemy of black Americans from the time of the 1857 decision in the case of Dred Scott v. Sandford through the decisions nullifying Reconstruction-era civil-rights laws, through the Plessy v. Ferguson decision, and finally ending when Chief Justice Earl Warren handed down the decision in Brown v. Board of Education of Topeka in 1954.  That’s nearly 100 years of antipathy against black people, even while Congress was often inclined to bring relief to them.  So, if you want justice, watch “Perry Mason.”

Personal disclaimer:  This page is not a publication of North Georgia College & State University and NGCSU has not edited or examined the content of the page.  The author of the page is solely responsible for the content.

Last updated on July 28, 2004, by Barry D. Friedman.

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