The Forgotten Branch of Government

With everyone so focused on the presidential race and, secondarily, on whether Democrats will expand their majorities in Congress, today's New York Times story on the transformation of the federal judiciary is worth a read for citizens everywhere. 

We often forget that we have three branches of government that are designed to check and balance one another. The presidency and Congress get most of what little media attention is devoted to public affairs outside of campaign season. But the judiciary can be just as powerful. We see this in such pivotal Supreme Court decisions as Bush v. Gore, Roe v. Wade, Brown v. Board of Education of Topeka, Plessy v. Ferguson, Dred Scott v. Sandford and Marbury v. Madison. And, as the Times story points out, we also see it in the influence of the federal appeals courts, which increasingly decide many matters critical to American society because the Supreme Court is reviewing fewer lower-court decisions. 

This is very important in the context of the race for the White House, as the president appoints federal appeals-court judges. Bill Clinton appointed 65. George W. Bush has appointed 61. According to the Times story, the combined appointments of Republican presidents since 1980 — particularly those of the last eight years — have contributed to a massive rightward shift in the composition of the federal judiciary and, as a result, of its interpretation of the law.

Whether you agree with such a shift or not is almost immaterial here. My point is that the judiciary matters, even though we think about it and hear about it very little. We need to make sure we are aware of its important decisions as well as changes in its composition, and keep in mind that in selecting a president we also help determine the nature of the judiciary branch — both the Supreme Court and the federal appeals courts.