Barak_TheJudgeInADemocracy_PartIII

Barak_TheJudgeInADemocracy_PartIII - THE JUDGE IN A...

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Unformatted text preview: THE JUDGE IN A DEMOCRACY Aharon Barak P R I N C E T O N U N I V E R S I T Y P R E S S P R I N C E T O N A N D O X F O R D Part Three T H E R E L A T I O N S H I P B E T W E E N T H E C O U R T A N D T H E O T H E R B R A N C H E S O F T H E S T A T E 1 See Harry Woolf, “Judicial Review—The Tensions Between the Executive and the Judiciary,” 114, L.Q. Rev. 579 (1998); Guarnieri, et al., supra p. xii, note 10 at 150. 2 See William E. Leuchtenburg, “The Origins of Franklin D. Roosevelt’s ‘Court- Packing’ Plan” 1966, S. Ct. Rev. 347 (describing President Roosevelt’s desire “to pack the court”). 3 This exercise of judicial authority created a tension between the Appellate Division and the Parliament in South Africa with regard to the implementation of apartheid. See C.F. Forsyth, In Danger for Their Talents 58–128 (1985). C H A P T E R T W E L V E Tension among the Branches CONSTANT TENSION There is constant tension in the relationships between the courts and the other branches of the state, 1 a tension that stems from the differ- ent roles of the branches. The role of the judiciary is to review the actions of other branches and evaluate whether they are acting law- fully. This role naturally meets with opposition from the other branches, particularly when the judiciary, through its rulings, frus- trates political goals the other branches pursue. In such circumstances many argue that a body that is not accountable to the people should not be able to frustrate the will of the people. The more cherished the voided act is to the hearts of the political authorities, the greater the criticism, amplified across all forms of media. The court has limited access to such media. As a result, the tension between it and the other branches increases. It reaches its peak when the other branches try to use their powers to change the composition or jurisdiction of the court. 2 In these situations, an impartial court examines the use of these powers by the other branches with the same objectivity that it usually exercises, for the court does not seek to protect its own com- position or jurisdiction but rather to protect the values of democracy. 3 The court may determine, therefore, that some of these means are lawful. In the event that the court makes such a determination, the composition or jurisdiction of the court may be preserved only with the help of social forces that seek to protect democracy and the court. In this instance, public confidence in the court plays a central role. THE TENSION IS NATURAL AND DESIRABLE Tension between the courts and the other branches is natural and, in my opinion, also desirable. If the court’s rulings were always satisfac- tory to the other branches, it would raise suspicion that the court was not properly fulfilling its role in the democracy. Thus, criticism of the court’s rulings is proper and benefits the court itself, for this criticism helps to guard the guardians. Indeed, the constant tension betweenhelps to guard the guardians....
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This note was uploaded on 02/05/2012 for the course 790 395 taught by Professor Tillery during the Fall '09 term at Rutgers.

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Barak_TheJudgeInADemocracy_PartIII - THE JUDGE IN A...

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