‘JAIL’ for Judges: Try It, Maybe We’ll Like It
In an op-ed from the subscription side of the Wall Street Journal that was carried over to the free side at OpinionJournal.com on Sunday, former Supreme Court Justice Sandra Day O’Connor bemoaned “The Threat to Judicial Independence,” and specifically opposed a South Dakota ballot initiative referred to as a “Judicial Accountability Initiative Law” (J.A.I.L.). No one with a brain condones the violence being directed at judges, but I believe it is more than fair to question and to place some kind of check on their conduct and decisionmaking processes, especially when many judges have come to believe that it’s okay to cite international law in their decisions.
I have reviewed the proposed J.A.I.L. amendment (so that I could link to a non-PDF page, I linked to the page containing a California draft; except for the state name, the South Dakota language is virtually identical), the people behind it, and some of what the opposition has to say. I can see legitimate reasons to be troubled by the reasoning of supporters and detractors. At best, the initiative’s passage could serve as a deterrent to judges who like nothing better than legislating from the bench. It could also be a deterrent to Ohio’s campaign contribution-based rulings against settled law that the New York Times documented in one of its finer moments on Sunday. At worst, it could turn out to be a kind of star chamber that would be open to bigtime abuse by personal or political enemies.
But the Founding Fathers envisioned the states as laboratories for change, and the J.A.I.L. initiative seems like a good one to at least experiment with, especially in a relatively small state like South Dakota — especially if it might cut down on the type of heavyhanded courtroom conduct noted here.
