Where’s the blindfold?

Why Justices and Judges Are Exempt from Protest

Everyone talks about the American right to peacefully protest (although some politicians clearly support violent “protests”… if it’s on their side). However, where in the Constitution does it say that? Where does it say, “Congress shall make no laws restricting the right to protest?”

Well, it doesn’t contain that exact phrasing, but it does say, “Congress shall make no law… abridging… the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

It may be a pretty safe assumption that the Founders did not foresee the future citizens of the United States assembling together to shout out, “Right on!” or “Atta boy, Congress!” or “I say. Jolly good show, chaps!” No, if we citizens were going to assemble, it would be to grumble about something. Or, you know, protest.

However, the Founders recognized the dangers of allowing any one segment of the population, even if it turned out to be a large majority of the population, to have unrestricted control of the powers of the government. So they built a structure of governance that had varying levels of exposure to public sentiment.

First was the House of Representatives. Each Representative speaks for approximately the same number of citizens and they act with the sure knowledge that they are always less than two years away from having to face their constituents for permission to remain in office. This was the part of government closest to or most tightly bound to the wishes of the people. If one had a list of grievances that needed redressing, one’s Representative would be the logical place to petition.

The Senate was the organization a bit more isolated from the will of the people. Originally, the two Senators of each state was to be selected by that state’s assembly. So, to exert influence in the Senate, the citizens had to first influence their state government which could then contact their Senators to let them know the change in sentiment within the state. We now directly elect our Senators, but with 6-year terms, they are still a bit more isolated from the citizens than Representatives.

The branch that was deliberately set up to be completely free from the sentiment of the people is the Supreme Court. The Supreme Court Justices are appointed rather than elected and hold their positions for life. They never have to directly face the people.

This is quite deliberate.

The House is where the rubber meats the road and will jiggle with every bump or crevice of public opinion. The Senate is the shock absorber which smooths out the ride and even, now and then, steps in to say, “Hold on. Let’s not get carried away.”

The Supreme Court doesn’t know or care about what the public wants. It’s job is to look at the laws it is being asked to examine and ask one question, “Is the US Government allows to do this?”

When considering this question, it is allowed only to consider three things.

  1. The Constitution.
  2. Existing laws.
  3. The evidence for and against the law which must be strictly laid out in a tightly controlled environment where both sides have equal opportunity to present evidence supporting their position and/or attack the evidence supporting the opposing side.

That is why there are laws forbidding attempts to persuade Justices (or judges or juries) through protests or any method outside the three listed above. Anyone who has served on a jury knows that each jurist must make their decision based only on the facts of the case presented in the courtroom. Not personal biases or preferences, not “facts” read in the newspaper or heard on the radio or from a neighbor’s conversation. If, say, someone charged with a crime is to be deemed guilty or innocent based on the sentiment of the surrounding community, we wouldn’t need courts of law. Just run a public opinion poll.

Whether you’re playing a sports game or running a civilization, you need referees and umpires who don’t care who wins or loses or which side is getting the loudest cheers from the stands, but only care that the game or civilization operate within the rules at all times.

So no, trying to influence the decisions of the Judiciary by means of protests are not allowed. If any judge or Justice rules in any way that you don’t like, you have to examine the ruling and find the flaw in the legal reasoning. Failing that, you must realize that the problem lies in the text of the law, not the ruling. So you must turn your efforts in changing the law to fix the flaw, if possible.

In the meantime, don’t panic.

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Tomm Carr

Tomm Carr

A retired software engineer who hates retirement with a passion. My hobbies are economics, philosophy and futurism.