Judicial Checks and Balances Are Essential to Justice

Yahoo

02-05-2025

President Trump has sought to deliver on his promise to streamline government by cutting more than 200,000 federal jobs since taking office for his second term, but with 174 pending lawsuits against the administration, he is creating work for lawyers. Not all of these cases will prove meritorious, but there is also no reason to believe any are entirely specious, as suggested by a White House memorandum vowing to seek sanctions against attorneys filing frivolous lawsuits.
Amid a looming administration showdown with the Supreme Court over the return of a Maryland man who was mistakenly deported to an El Salvador prison, Americans should remember that litigation on fundamental questions such as the due process rights of detainees is a sign our system of checks and balances designed to protect individual liberty is working as intended.
Calls to impeach federal judges and threats of violence against the judiciary undermine the vital role courts play in ensuring disputes are settled peacefully and aiming to give each case a fair and impartial hearing. For those who disagree with a court decision, the system provides recourse, whether it be the filing of an appeal or the pursuit of changes in statute and the Constitution.
Recent developments in criminal law, whether in the context of the Jan. 6 prosecutions, the death penalty, or wrongful convictions, demonstrates the importance of maintaining an independent judiciary as a constitutional bulwark to check the other branches of government.
Ironically, this judicial check has contributed to protecting the rights of some of the most right-wing defendants. A case in point is the 2024 Supreme Court decision in Fischer, in which the majority of justices rejected prosecutors creative attempt to use the obstruction of government proceedings charge against Jan. 6 rioters. This offense was created by a provision of the Sarbanes Oxley Act, passed in 2002 as a response to the Enron accounting fraud debacle. The title of 18 U.S. Code § 1512 is "Tampering with a witness, victim, or an informant," which is a dead giveaway that this crime was not intended to apply to a Capitol insurrection.
While the defendants undoubtedly did seek to impede Congress certification of the electoral votes, prosecutors attempted to use this law without making any claim that their actions resembled the acts reference to altering, destroying or concealing a document, record, or other object. While the Fischer decision did not foreclose the use of a more detailed insurrection-related charge under this statute if a direct connection to something akin to a business record could be demonstrated, it rejected the notion that Congress had intended to create a high-level felony simply for any disruption of a government meeting.
As Justice Ketanji Brown Jackson noted in her concurrence, "[H]ewing closely to Congresss will" as embodied in the statute that it wrote "is especially important" when construing laws like this one, which implicate the possible imposition of punitive sanctions." Indeed, this statute carries a penalty of up to 20 years in prison.
Undoubtedly, Special Counsel Jack Smith and critics of President Trump were frustrated by this decision, and in fairness, Smith had a good-faith argument based on a purely literal reading of part of the statute that references action that "otherwise obstructs, influences, or impedes any official proceeding." But that interpretation could not be reconciled with legislative intent and other language in the statute that puts it in context. Now, Fischer stands as a valuable precedent ready to be wielded by any defendant facing a novel use of a criminal statute that pushes the envelope on its scope.
If such a judicial check on government power - especially its most potent power, which lies in the authority to criminally punish its citizens - is lauded here, surely it also has merit when the defendants are of a different ideological stripe. The value that the judiciary provides in ensuring criminal laws are not construed too broadly is, after all, not based on whom the defendant is, but on a courts duty to determine whether the constitutional and statutory authority exists to apply a law to the unique set of facts in each case.
For example, in death penalty cases, the judicial branch has frequently acted as the last safeguard against wrongful execution. Consider the 2019 case of Rodney Reed in Texas. Just days before his scheduled execution, the Texas Court of Criminal Appeals issued a stay after new evidence emerged suggesting Reeds innocence. That decision wasnt just a procedural move; it was a profound statement that the judiciary exists to uphold fairness, especially when life and death are at stake.
And what about wrongful convictions? The National Registry of Exonerations has documented more than 3,300 exonerations in the U.S. since 1989. Many of these cases were overturned not because of legislative reform or executive action, but because courts - often after painstaking reviews - reopened cases where overwhelming evidence proved innocence.
As such history vividly demonstrates, checks and balances are not theoretical. They are the living framework that guards against injustice. Without courts to scrutinize executive actions, or legislators to investigate abuses of power, the system breaks down. And in a criminal justice context, that breakdown doesnt just mean inefficiency - it means unlawful detentions, wrongful convictions, and even the execution of an innocent person.
In polarizing times, its easy to forget why our system was designed with tension between the branches. But tension isnt failure - its function. Its the friction that slows down rash decisions, demands accountability, and ultimately, upholds the promise of justice. No branch of government - whatever its intentions - should wield unchecked authority, especially when liberty and life hang in the balance.
Criticizing specific rulings is fair game, but the broader verdict has been delivered by our history: We need the judiciary as a check on government power and defender of our Constitution.
Marc A. Levin, Esq. is chief policy counsel for the Council on Criminal Justice and can be reached at [e-mail] and on X at @marcalevin.
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Khalil A. Cumberbatch is director of strategic partnerships at the Council on Criminal Justice and can be reached at [e-mail] and on X at @KhaCumberbatch.