Trump v Judiciary
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That the President should disagree with the Chief Justice of the Supreme Court by insisting that American judges are not independent and either support or oppose the President, ought to come as a great shock to reasonable minded people everywhere.
American schoolchildren are brought up to appreciate the wisdom of the checks and balances and separation of powers between the three arms of their government – the Executive government (the President), the Legislature (the two houses of Congress), and the Judiciary (the Courts of law). The separation and checks and balances are deliberately and expressly intended to prevent any arm of government acquiring too much power and abusing it. Such checks of power are therefore likely to frustrate those, like Trump, who hate not being allowed to have their way.
While the equivalent three arms of Australia’s government are not as totally separated, we, like the Americans insist and depend on an independent judiciary to protect our rights, democracy and rule of law, preventing one of the three arms from dominating and assuming the powers of a democracy.
When the judiciary frustrates a government’s or parliament’s will, depending on the circumstances the choices are to appeal to a higher court, have parliament change the law, or change the Constitution. Consequently, despite the misleading rhetoric of the frustrated arm of government, the Judiciary can NEVER overrule the will of the representatives of the people (parliament or Congress) or the people themselves (voting in referenda in Australia).
Even Trump fans will agree that he throws a tantrum when he can’t have what he wants. But does he really not understand why we value an independent judiciary? In suggesting that he must, we may be giving him more credit than is due.
The silver lining that I see in this latest Presidential faux pas is that American judges are likely to redouble their efforts to display impartiality and independence. Why am I confident about this? Because they are already beginning to make decisions expressly underlining that they do not take sides.
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