Speeches I Never Gave--#2--The Impact of the Courts

The courts are politicized.
The courts are legislation in another form.
Most courts are subject to direct election.
All courts are at least indirectly subject to the election of someone.
There is no such thing as a "non-partisan" court.
Understandably, we have been operating under the assumption--which as amounted to no more than wishful thinking--that courts are somehow above the partisan squabbling that normally constitutes our legislative, law-making processes, whether on the federal, state, or local levels. It is time we come to a more realistsic viewpoint of these matters.
This is crucial for the future of public education because:

• of the increased use of court by our state affiliates to solve the problems of equity and adequacy in public education policy and school funding
• of the increased expenditures that both the NEA and the state affiliates have incurred in the pursuit or defense of pro-public education positions in legal disputes
• of the growing realization that the legal decisions made that most greatly impact public education policy are made, not according to a pre-ordained consensus regarding the meaning of laws and their application, but a subjective standard that has far more to do with the re-established legal philosophies stated by either those who have been elected to judicial positions, selected to them, or by those doing the selecting.

This may be nothing new in the realm of American politics, but the degree of attention paid by the NEA and its affiliates to judicial races and appointments--and the impact they have had on the deetermination of where educational resources go, who gets them, and how internal and external educational policy is performed.

Regardless of the rhetoric that presidents and governors and candidates have used, court decision-making, being either the act of interpreting the law--explaining a law's meaning as applied to its enforceability or the lack of it, reflecting upon the necessitation of new law, the adjustment of a law's adjudication, both or neither, constitutes but one part of a flowing process of making and re-making laws:

People At Large

Legislative Branches

Courts

Law Enforcers

--in which courts choose, or do not choose, to sharpen, clarify, or further expand upon what a law actually means. Regardless, adding any words to the text of a law changes the text and thus changes the law itself--just another part of "amending" the law, which is another part of law-making.

This may be a new way to consider what, for some, has been a separation of powers. To the contrary, it is a separation only of the order in which a law is considered and, if necessary, continuously revised.

There has never been a question about the definitive role of the legislative branch; what has evolved over time is the role of the executive branch in legislative leadership--the preparation of governmental budgets, for example, as well as the attempt to execute policy initiatives that an executive has campaigned on. But there can no longer be much doubt about the role judicial electees or appointees play in the extension of policy initiatives--witness the increasing monies spent on judicial elections and the increased attention paid to federal judicial appointees. There can be only one reason for this: in their own way, regardless of philosophy, regardless of the decisions to act or not to act--the courts make law.

Important questions, therefore, loom:

1. Have the NEA and state affiliates been able to sufficiently influence judicial appointments, regardless of their governmental level? Why or why not? If not, can anything be done about it?

2. Has sufficient and equivalent attention been paid to judicial elections, regardless of governmental level?

3. Can we establish as consensus the view that the courts have had roughly an equivalent effect on education policy-making as legislative and executive branches, regardless of governmental level?

4. Would this aspect of politics be worth a new examination?

Mister Mark