Public Trust Is a Fragile Bond
| Publication year | 2021 |
| Pages | 41 |
77 CBJ 41. PUBLIC TRUST IS A FRAGILE BOND
When informed of a Supreme Court decision that challenged his position, President Andrew Jackson is reported to have remarked, "John Marshall has made his decision; now let him enforce it."(fn1) Old Hickory knew whereof he spoke. John Marshall could opine magisterially until he turned Federalist blue in the face, but he had no means to enforce his opinions or to compel society to conform to their holdings. With characteristic pith, Andrew Jackson had highlighted the reason that, in Alexander Bickel's memorable book title, the judiciary is the least dangerous branch.(fn2)
In their article "Judicial Independence at a Crossroads,"(fn3) Justice Zarella and Judge Bishop have, with scholarship and persuasive argument, addressed a subject of transcendent importance: the effect on the judiciary's decision-making role in dispute resolution wrought by the constant devolution of other responsibilities on this slender branch. They analyze the issue within the framework of the criteria they draw from Adams v. Rubinow:(fn4) nonjudicial functions imposed upon the Judicial Branch must not: (1) require a judge to perform a nonjudicial function in his or her judicial role; or (2) unreasonably interfere with the performance of judicial duties; and must (3) reasonably relate to the function of the judiciary.
There is a more fundamental reason to be chary of accretions of nonjudicial functions by the Judicial Branch, however. That reason has nothing to do with the constitutionality vel non of the imposition. It has to do, rather, with the unique position of the judiciary in the American form of govern-
ment; in order to be effective it must, like Blanche Dubois in A Streetcar Named Desire,(fn5) always be dependent on the kindness of strangers.
If Congress or a state legislature passes a law that the executive branch chooses not to enforce, the legislature has the means to bring the executive branch to heel. It can deny appropriations, refuse to confirm necessary appointments and, in general, stay its hand in the myriad instances its cooperation and assent are required to permit the executive branch to operate. Likewise, the executive branch has the power of hiring and firing over recalcitrant employees who demur at implementing policies with which they disagree.
The Judicial Branch, by contrast, has neither the power of the purse nor the personnel to implement its decisions. One has but to think...
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