Q: Recent court cases in the news have commentators talking about the role of the judiciary in society. As Chief Justice, what is your position on the role of courts in Nevada government?
Commentators speak as though the role of the judiciary has changed. It has not. For over two centuries, the essence of our nation’s representative democracy is the division of power between three branches of government: legislative, executive and judicial. This division is found in the United States Constitution and every state constitution. It is the hallmark that separates our democracy from other governments, past or present.
Unfortunately, for the past three decades, emphasis on civics or government has declined in our educational systems. As a result, citizens have a poor understanding of the system of checks and balances between these branches that is the foundation of America’s governmental structure. By dividing government among three branches, our ancestors ensured that the tyranny they experienced could not be duplicated in the New World.
Each branch is entrusted with certain powers. Legislatures enact laws and appropriate funds. Executives enforce laws, manage day-to-day operations and allocate the legislatively appropriated funds between citizens’ needs – for example police, fire, water, schools and sanitation services. The courts have the duty to balance between competing interests, acting as a check on the authority of the other two branches and the impact of those branches on individual citizens.
The courts have three roles. First: to provide a fair and efficient system for resolving civil disputes and criminal adjudications. Second: to interpret, when properly requested in a case, a statute or constitutional provision which impacts a dispute between citizens, the other branches of government or a citizen and the government. Third: to protect the rights granted to citizens under the federal or state constitutions. Persons who are objective, unbiased and free of influence from special interests must perform these responsibilities.
Judges, whether in Nevada or in any other state, do not reach out and make proclamations. Our rulings are made in the context of the disputes brought to us. We do not create them; we simply provide the forum for resolving them, short of violence in the streets.
Sometimes judicial rulings are considered controversial. An issue exists in society, unresolved and festering. Regardless of the ultimate decision, one side in the controversy will lose, and so the cry of “foul” is levied at the judges. Judges know this. They make decisions based on the law and the facts placed before them, not on popular opinion.
Whether a decision will be popular with a certain segment of the population, such as labor, gaming, lawyers, homeowners, government, contractors, doctors, Republicans, Democrats or any other special interest group, must not be a consideration. When courts make decisions based on opinion polls, allowing political agendas to sway the findings, then courts are truly being “activists.” Making an independent, objective decision, based upon the laws and constitutions, is not activism; it is a constitutional imperative.
When judges let their personal feelings lead them astray, our system suffers. Consider segregation. The United States Supreme Court originally tried to cater to special interests when it approved the “separate, but equal” doctrine in 1896. The court feared if it rejected the doctrine, there would be violence in the streets and uproar from segregated sections of the country – possibly even a new civil war. In doing so, the court ignored both the words and the intent of the federal Constitution and adopted a policy that promoted discrimination, leading to the rise of organizations such as the Ku Klux Klan. Its decision was the epitome of activism. In contrast, 58 years later, the Supreme Court enforced the Constitution and rejected the “separate but equal” mentality.
The decision was not popular in many states, but it was required by our Constitution. And the rule of law in our nation survived, thanks to Congress and President Eisenhower, who recognized the Court’s ruling must be enforced, even if certain members of the executive or legislative branches would have preferred to maintain the status quo and hope segregated states would end discrimination on their own, if at a slower pace.
So what is the role of Nevada’s judiciary? As it has been since 1864, the judicial branch will continue, when asked, to interpret statutes and the Nevada Constitution. It is the job given to us under our Constitution. If you want decisions based on “asking the audience,” then watch Who Wants to be a Millionaire? on TV.