Ire of Newt

The race for the Republican Party’s nomination has narrowed to four – Ron Paul, Rick Santorum, Newt Gingrich and Mitt Romney – and, while Barack Obama will prove hard to beat in the presidential election on 6 November (particularly if the latest US job figures are anything to go by), a Republican victory could give rise to seismic changes in the way the American justice system is structured.

Since Mr Obama’s victory in 2008, the Republican Party has voiced growing concerns on justice – concerns best summed up under the heading “courts” from the six key election issues set out on the Grand Old Party’s website: “Republicans believe a judge’s role is to interpret the law, not make law from the bench. Judges in our federal court system, from district courts to the Supreme Court, should demonstrate fidelity to the US constitution. We trust the judicial system to base rulings on the law, and nothing else.”

So what is their concern, and why give justice such a prominent place in their manifesto? The answer is that the Republicans think the classic three-way split of executive, legislature and judiciary has become unbalanced, and that the judicial arm has become too powerful, if not in fact dominant.

The prime example given is that of Iowa in the midwest where, in April 2009, the nine justices of that state’s supreme court affirmed a decision of the district court and gave a unanimous ruling that the state had no legitimate basis, under the state constitution, to prevent same-sex couples from marrying. This decision electrified America and a fierce conservative campaign began. Under Iowan law the appointment of justices is confirmed by the electorate in rotation, three judges at a time; and in November 2010 the three judges due for reappointment (including the Iowan chief justice), in an unprecedented move, were ousted. A prominent local Republican campaigner stated that “the people of Iowa stood up in record numbers and sent a message … that it is ‘We the people’, not ‘We the courts’.”

The Republican torch was lit and, the economy and military aside, a major campaign issue identified, which seemed to strike a chord with conservatives not just in Iowa but across the US. The heated debate has included calls for decisions of the Supreme Court to be made subject to the approval of the House of Representatives; for the Supreme Court to have no jurisdiction on issues including abortion or marriage; and for the appointment of Supreme Court justices to be time limited, or at least subject to democratic review.

Such calls, of course, would if implemented represent major changes to the status quo which has existed since the time of the Founding Fathers, and are a major assault on the independence of the American judiciary. Newt Gingrich has been most prominent on the issue, even calling for the abolition of the Courts of the Ninth Circuit of Appeal (the appeal court for nine western states, including California, and renowned for its more liberal judgments) and the power to subpoena state judges before Congress to explain themselves on controversial judgments. Mitt Romney has been more subdued in his attacks, but last August set up a justice advisory committee, stating: “Our nation needs … a judiciary that will strictly construe the constitution and refuse to legislate from the bench”.

While most of this is rhetoric and destined to be nothing more, it indicates a country ill at ease with the relationship between the powers of the legislature and judiciary, between federal and state courts, between midwest conservatives and urbanite democrats.

America’s Democrats, on the other hand, do not identify the Republican concerns about the justice system as a political issue; and true to their great tradition of promoting civil rights, their election focus – insofar as it touches on the justice system – is geared towards the effective promotion of equal and fair access to justice for all: protecting voting rights; enacting the Employment Non-Discrimination Act, which includes measures prohibiting discrimination based on sexual orientation or gender identity; ensuring civil unions and equal federal rights for lesbian, gay, bisexual and transgender (LGBT) couples and fully repealing the US Defence of Marriage Act; ending racial, ethnic and religious profiling; and building a ‘fair and more equitable’ criminal justice system that provides non-violent offenders with a second chance at rehabilitated life. As far as the Democratic Party is concerned, the furtherance of none of these important election policies would require any change to the civil and criminal justice system as it stands. So while on one view this appears to be a policy debate about the American justice system, the truth is perhaps that, in reality, it is a more a debate about the kind of America that both parties want to see grow and flourish.

Only last week, on 7 February, three justices of the Ninth Circuit of Appeal ruled in a 2-1 decision that a Californian law passed in 2008 to ban gay marriage (referred to as “Proposition 8”) was unconstitutional, stating: “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships as inferior to those of opposite -sex couples.” Inevitably, of the three ruling justices the majority two were Democrat appointments, while the dissenter was Republican. The case seems likely to move to the US Supreme Court (or at least a larger Ninth Circuit Appeal Bench) and will be of national significance in the run-up to November.

The last word goes to the colourful Gingrich who, if nothing else, combines a sharp intellect and popular appeal: “In America we have a balance of three branches, we do not have a judicial dictatorship and, like Jefferson, Jackson, Lincoln and FDR, I would be prepared to take on the judiciary if in fact it did not restrict itself in what it was doing.”

• Stephen O’Rourke is an advocate depute and member of Terra Firma Chambers