When Judges Become Legislators

Professor Joe Goldblatt

“This election was not won. It was stolen!” My father thundered these words before hundreds of supporters immediately after losing his race to become Mayor of Dallas, Texas in 1985. Many years earlier he has lost his first election to become a city council person. In those days all members of the city council were elected through an At Large system meaning that every citizen in Dallas voted for all candidates throughout the entire city. After losing that election Papa was determined to learn how to win in the future. To improve his chances of being elected in the future, he appointed a local attorney named Joseph Devaney and filed a law suit against the city of Dallas. His case went all the way to the United States Supreme Court in 1968. The Surpreme Court ultimately refused to hear the case, however, the resulting publicity forced the City of Dallas to change its voting system to allow council candidates to be elected, for the first time, by their neighbours within their own single member districts. Papa won the next election by a small percentage, was re – elected, and then ran for Mayor.

This was the first time that I had realised the enormous power that Judges and their Courts have in terms of influencing public policy. In recent years this power seems to have grown exponentially as we have recently seen by the conservative judges of the U.S. Supreme Court as they has reversed decades of law governing a woman’s right to choose, prayer in public places, and now, one of its justices wishes to over turn the law granting same sex marriage.

The U.S. courts have been joined by the U.K. legal system in offering rulings that reverse of significantly change legislation. In recent days the U.K. courts have considered issues related to immigration that eventually was overturned by the European courts to prevent the deportation of refugees to Rwanda. It appears that the thrd branch of government, the courts, has become in a very short period of time one of the most powerful legislative bodies.

How did all of this happen? Historically, the democratic system of government clearly divided the responsbilities between the executive, the legislative and the judicial branches of government. However, due to the inability of some elected representatives to reach agreement through consensus often some of society’s most divisive issues find their way to the courts for resolution.

Recently I observed a long debate in the U. K. House of Commons about the Prime Minister’s wife being helped with finding employment. Prior to this, many days were spent with acrimonious arguments about the Prime Minister and his Cabinet imbibing alcohol together in their offices during the pandemic when events were not allowed.

The problem with these distractions is that the work of government is often side tracked and eventually there is no alternative than to refer the legislation to the courts for a final opinion. This then creates a circular system where in once the court rules the legislators immediately begin to formulate new laws to challenge their ruling.

Following my father’s loss in his Mayoral race a reporter from the New York Times rang my home and asked if Max Goldblatt was my father. When I confirmed that indeed I was his son the reporter asked me if I was aware of the contested election where former U.S. Vice President Al Gore lost to former Governor George W. Bush due to voting irregularity in the state of Florida?

The reporter went on to explain that the computerised voting system that was used for the first time in Florida for this presidential contest was the same system first used in Dallas, Texas for my father’s ill fated run for Mayor. The reporter asked me if perhaps the system in Dallas could have been rigged to prevent my father from winning his race. In fact, in my father’s race, less than five hundred votes would have allowed Papa to participate in a run – off and become the Mayor.

I answered by saying that I was not familar with the technology used in Papa’s contest, however, it seemed plausible to me. The reporter continued to investigate and he found that indeed in both Florida and Texas there had been significant faults and irregularities with the voting systems used. However, my father, sadly had died following a massive heart attack, and therefore there was no point in further challenging the outcome of his race.

When I asked Papa why he did not follow through with his intention to contest the election that he claimed had been “stolen” he simply said with a weary voice “I am tired of fighting.”

I am also tired of our elected officials failing to do the job for which they were appointed and as a result too many of their legislative responsibilities are being referred to local, national and international courts. The court is an unelected and undemocratic body that is often the final destination for key human rights and other policies to be considered. Furthermore, the lengthy deliberations by judges often delays justice from being done because of the multi – tier court system.

Therefore, the next time an election is held in my country one question I will ask of the candidates is if they have the ability to work together with their fellow politicians to progress government policy through the parliament or local council and therefore not have to turn to the courts to do the work we elected them to do. If they do not give me a straight answer with examples of how they plan to collaborate with others including their willingness to compromise to pass legislation, I shall then question their ability to govern.

In recent years we have seen the critical importance of electing wise and courageous leaders who can work together to overcome the great catastrophe of a global pandemic to save lives, save jobs, and begin to help the economy build back to a better and more sustainable platform for future growth. I believe we do not need a catastrophe to demand that our elected officials work together more effectively and avoid the sniping and distractions of their personal issues with one another to propose and pass legislation in their chambers. If they fail to do this work due to their negligence we shall continue forcing these responsibilities upon judges who cannot and must not become our future legislators.

Professor Joe Goldblatt is Emeritus Professor of Queen Margaret University in Edinburgh, Scotland. To learn more about his views visit www.joegoldblatt.scot