Although the judiciary has been variously labelled as the weakest branch of government, the most dangerous arm or branch of government or the most democratic arm of government, the judiciary can become its opposite characteristic in one case, several cases or episodically or longue duree.
In other words, the very weak judiciary can be the strongest branch of government as exemplified by the Pakistan, Argentinian and Malawian etc judiciaries from time to time. The most dangerous branch can turn into being the most dangerous, not to democracy but to dictatorship and repression as exemplified by the US judiciary from 2001 to 2021, the subject of this article. The most democratic branch of government can turn into an anti-democratic institution in society through its interpretative lenses as the Zambian Constitutional Court has been accused of engendering since its inception in 2016.
Today’s article posits that the overall behaviour of the US judiciary over a 20-year period from 2001 to the present presents the exemplary performance in the finest ideal tradition of an independent and autonomous judiciary from which the Zambian judiciary represented by the ConCourt should emulate. The Supreme Court of Zambia is exempted from the isolated pointedness of the Zambian ConCourt.
The US judiciary rebelled against the general label hung around the judicial neck reading, “conservative status quo albatross” in the period 2001 2021. The year 2001 is chosen because the traumatic events of terrorist attacks on the US on September 9 anticipated a judiciary that would defer to the executive under the exigencies of a 911 State of Emergency. Most judiciaries lose their independence and autonomy during war and other emergencies, despite Lord Atkin’s dictum in the famous case of Liversidge versus Anderson of 1942 that “the law does not fall silent in times of war” or emergency. The year 2021 was chosen because it is the year Trump left the White House after appointing so many judges who he thought would be under his command. The judiciary he appointed rebelled. But let’s start with a historical narrative.
The First World War saw the US Supreme Court issue a series of decisions curtailing civil liberties and supporting the expulsion and deportation of vocal immigrants back to their countries, we saw massive state repression of labour unions without dynamic judicial relief. The judiciary as is mostly the case even in peace times but more so during war or other states of emergency, the US judiciary became an appendage of the executive during the First World War.
Occasionally, during economic crises like the depression period in the US beginning in 1929 to the late 1930s, the judiciary opposed progressive governmental legislative initiatives and this reactionary activist judicial intervention was on behalf of finance capital. Because of the depression, the FDR government sponsored progressive bailout legislation on behalf of the most vulnerable members of society and the middle class. But the judiciary struck down all these bailout legislations until the FDR government threatened to pack the court with progressive new judges in order to neutralise the pre-existing judiciary. The 1930s US judiciary epitomised the judiciary in its most conservative light independent of the usual attachment to the state.
Thus, judicial conservatism or dangerousness is not necessarily tied to judicial whimpering in support of the repressive or conservative State apparatus. Judicial chicanery can be any countervailing pendulum of the judiciary against the interests of majoritarian social, economic, civil, racial, gender, cultural, religious etc justice or imperatives against the most vulnerable members of society; be it aboriginal or racial in the context of the so-called western world and the equivalent appellations in other parts of the world.
At the beginning of the Second World War, the US Supreme Court issued a series of devastating decisions against Jehovah’s Witnesses for rejecting the draft to serve in the US Army and to stand for the National Anthem and to salute the US flag; and against Japanese Americans who resisted forced relocation and demanding that they be treated like American citizens which they were and not on the basis of their ancestry. The justification for these and other discriminatory Supreme Court decisions was the imperative of the existing state of emergency, that being the war and the urgency to defer to the wisdom of the executive.
The aftermath of the war saw unprecedented plethora of national and international legislations in the area of human rights, not always respected in practice but became habitual lip service nationally and internationally until the catastrophic events of September 9, 2001.
All of a sudden, this event wiped out the rhetoric of human rights, bringing in far reaching emergency legislations to combat terrorism. The anti-terrorism legislations across the world embedded and embodied within them anti-democratic, anti-rule of law, anti-civil liberties, and anti-constitutionalism ethos.
There was inevitable expectation that the judiciary would back up this new repressive legal regime under the new conditions of the global state of emergency like in previous times. It was not to be.
The judiciaries across the board: the UK, Israel, Uganda, Australia, South Africa and particularly the US rejected the attempts at wholesale evisceration of the rule of law and constitutionalism under the pretext of this state of emergence. From 2001 to present, the judiciaries of most states have rebelled. I have called it ‘Judicial Rebellion in the 21st Century’.
The US judiciary is a fascinating case study. Despite the presence of the most conservative chief justices in Rheinquist and Roberts, the judiciary refused to suspend habeous corpus for terrorism suspects. The US government wanted the law not to apply to enemy combatants. The judiciary demurred. Behind the judiciary are an array of heroic lawyers who paved and pointed the way for the judiciary to begin to rule the way they did. Trump came along and thought that the judges he appointed were his secret weapons. The judiciary that he appointed rebelled in favour of constitutionalism and the rule of law.
From 2001 to 2021, the US judiciary performed in the most exemplary and befitting manner expected of an independent and autonomous judiciary. All judiciaries including the Zambian one can learn a lot from the exertion of judicial independence and autonomy of the US Supreme Court from 2001 to 2021. It is possible to resist an appointing authority in favour of the Constitution and the Rule of Law. Trump is exhibit number one of the possibility and reality of judicial independence and autonomy.
Dr Hamalengwa is the author of “The Politics of Judicial Diversity and Transformation”.