Where I Stand — Brian Greenspun: A more perfect ruling

Friday, Jan. 14, 2005 | 5:34 a.m.

Brian Greenspun is editor of the Las Vegas Sun.

WEEKEND EDITION

January 15 - 16, 2005

The three equal branches of our government are at it again, always trying to make one more equal than the others.

Since the beginning of this republic, the executive branch (through the White House), the legislative branch (through Congress), and the judicial branch (through the Supreme Court), have provided the energy to move the pendulum of government from side to side, always in an effort to find the perfect balance contemplated by our Founding Fathers when they created our Constitution well over 200 years ago.

So far, that process has been a failure, but only if you consider perfection an achievable goal. I do not. Which means that I am one citizen who believes strongly in the words of our great patriots when they wrote the Preamble to that incredibly enduring document that governs this great democracy. It was not a "perfect" union that the framers of the Constitution expected us to achieve as much as it was an evolution toward a "more perfect union." Big difference wouldn't you say?

That is why throughout our history there have been tugs of war among the three branches of our government as they vie for power, one more than the other, in the belief that one branch -- usually the executive or legislative -- can do a better job of making this democracy work. In the beginning, it was always the Congress that determined which way this country would jump, how high that jump would be and in which direction it would go. That's because the early Americans knew full well the tyranny from which they had freed themselves and were naturally wary of an all-powerful executive.

As time went by, the presidents became emboldened -- mostly through their roles as commanders-in-chief -- and sought more power to themselves at the expense of the elected representatives. Since Congress then, like now, could rarely reach consensus, the people helped raise the stature of the White House to the point that by the time Franklin Delano Roosevelt was elected and the country was in one heckuva mess, he was able to consolidate power that was once unquestioningly the province of the Congress.

I suppose all that give and take would have worked well had it been confined only to the White House and Congress. But the judiciary branch -- the courts -- also got into the act. By ruling early on that Congress did not have a free hand in making laws, that the senators and representatives could only pass laws that passed constitutional scrutiny by the courts -- the Supreme Court to be exact -- the high court exerted its power and acted as a brake on legislative and executive fiat. It soon became known as the last bastion of free men and women, the place that would provide the check and balance on overreaching by either the lawmakers or the president.

And ever since that time the struggle has been constant and unrelenting over which branch would hold the real power and for how long. Right up until this past week.

The Supreme Court, in rather dramatic fashion, struck down the federal sentencing guidelines that had been in effect for two decades, by ruling that the Congress violated the Constitution by forcing federal judges to impose sentences that were required by the law but which had no factual basis determined through the jury process.

That is a long way of saying that a judge cannot protect an individual's rights if his ability to make factual determinations on a case-by-case basis is undermined by a uniform sentencing guideline.

In their desire to make sure that all defendants similarly charged should have similar sentences imposed, the lawmakers overstepped the Constitution by forcing the judges to abandon all discretion in such sentences. It was a ruling most people who understood the Constitution expected. The question was why did it take so long because in 20 years a lot of people were unnecessarily punished in order to meet some politically inspired law-and-order promise.

As for the drama attached to the ruling, it came in two parts, both 5-4 decisions with the dissenters on one part acting as the majority in the other. Only Justice Ruth Bader Ginsburg played for both winning teams, as it were, adding to the mystery of the Supreme Court and the mystique that makes it the least understood of the three branches.

While I agree with the decision and the "fix" fashioned by the court to give deference to Congress' intent to have uniformity in sentencing and the Constitution's requirement that it be done consistent with our precious few individual rights, I think the reasoning is far more simple.

When Congress and the president -- by signing it into law -- tied the hands of the sentencing judge, they jumped foursquare into the playground that had always been reserved for the judiciary. It is called judicial discretion, the ability of a judge to look at all the facts and circumstances in an individual case and make a decision. And with one signature from the presidential pen they took that away.

One reason they did so was because there were so many disparate sentences for the same crime handed down by either too liberal or too conservative judges -- some of them racially motivated -- that Congress thought it had to act. But in typical legislative fashion -- concerned more with the way things look than the way they work -- the law tied the hands of judges in a way that made the sentencing just as bad as that which they were trying to fix.

Now that may be corrected. We will have to wait and see. But this latest episode in the ebb and flow of power among the three branches of government demonstrates both the brilliance of our Founding Fathers and the lack of faith that many of our citizens have in the thinking that went into creating our Constitution, especially when we let our emotions overtake our good and common sense.

The Supreme Court has always been a normal citizen's last and best hope for the blessings of this great country to be made available to him. The Congress is often too concerned with the needs of its benefactors -- 99 percent of whom have nothing to do with the regular folks -- and the White House is equally beholden to its monied supporters. Not that either is necessarily bad because we generally elect honest people to represent us. It is just that the courts are driven in the end by what the Constitution requires, not any particular constituency. That is where the little guy gets an even break.

So when the rhetoric of politics heats up to the point that the judges get the blame for what society refuses to accept or deal with, the danger is that the two more naturally powerful branches of government can bully the third. That has happened a few times in our history and it takes either a courageous political leader or some courageous judges to stand up to the onslaught. That has not happened in recent times.

The last time I recall the court exerting itself was in the days of Watergate when it was obvious that neither the White House nor the Congress was prepared to step up to the fight. This latest ruling, while nowhere near as dramatic or meaty as Watergate, does regain some control over the courtroom and return it to the judges.

What they do with it, of course, will determine how long they get to keep their co-equal status. But for now, score one for the people because their court has acted -- no matter how confusing that action seems to be -- in their best interests. Now if we can just get that courage to spread across the entire judiciary, we may have a shot at fixing that which ails our democracy.

If not, the ride will continue to get rougher as the power moves from side to side and the little guy gets trampled.

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