Constitution Day is the Perfect Opportunity to Fight for Judicial Independence

By Coby Dolan, Legislative Director, Access to Justice, Earthjustice Action

For 238 years, the U.S. Constitution has guided our legal system and government: constantly evolving toward ensuring full equality for all, providing a solid foundation for the rule of law, and endowing each of the three branches of government with various powers to facilitate a government governed by, and for, the people. These duties and values are fundamental not only to our individual rights, but to the creation — and enforcement — of bedrock environmental laws that protect our health, air, and water. 

This Constitution Day, that legacy is more important than ever as our environment, individual rights, and democracy face existential threats that would undermine over 238 years of hard-fought progress. 

Importantly, our Constitution created the federal court system, imbuing courts with the power of judicial review. What may sound like a wonky legal doctrine is actually a simple, foundational constitutional power given to our courts. Judicial review allows all of us to vindicate our rights and hold economically and politically powerful wrongdoers accountable to the law — including polluters despoiling our air and water. 

Equally as important is our courts’ ability to serve as a critical “check and balance” against the abuses and overreach of the legislative and executive branches of our federal government. This power is under immense strain, and it couldn’t come at a worse time, as both the power of judicial review and the independence of our courts are critical to act as a bulwark against tyranny. 

Unfortunately, President Trump has waged a broad assault on judicial review, the rule of law, and the courts, threatening key pillars of our democracy. He and other members of his administration have relentlessly attacked sitting judges, bent law firms to their will, and allegedly told career public servants to ignore court orders. Moreover, President Trump has used his constitutional authority to nominate federal judges with troubling backgrounds that signal they will potentially be more loyal to him than to the Constitution. 

And it’s not just the Trump administration. Some in Congress seek to strip power from the courts through legislation, closing the courthouse doors to those who need them the most. 

Right now, Congress is considering dozens of bills that weaken the power of the public to challenge wrongful actions in court or weaken the ability of courts to apply the law and stop illegal actions. Corporate polluters are lobbying for quicker, more reckless federal permitting processes that would keep the public out of the courtroom and put blinders on federal agency decision-makers, restricting them from considering how their projects impact the health of our families, communities, and environment. 

Numerous other bills seek to shorten the time frame in which the public can challenge unlawful actions in court, known as the statute of limitations. For nearly eighty years, the public has had up to six years to bring a challenge in court, but polluting industries are working hand-in-hand with their congressional allies to limit that timeframe to as little as 150, or even 90, days. This would severely restrict the time communities impacted by big polluting projects have to make their voices heard. Other legislative efforts either currently circulating or likely to reappear in Congress would force federal courts to fast-track permitting decisions ahead of all other cases on a court’s docket (including civil rights and criminal cases), limit the power of courts to use temporary injunctive relief against wrongdoers, and even eliminate judicial review by the courts entirely. 

It’s easy to be overwhelmed by the broad attacks on our institutions and our Constitution, but now is not the time to stay silent. We must resist any efforts in both Congress and the executive branch to weaken our courts and in effect, weaken our access to the justice they afford us. Our courts are essential to interpreting the Constitution. They act as a check on legislative power by declaring unconstitutional laws void, and they give others — including key environmental laws — the power and effect intended to protect public health, the environment, and our rights. 

While the original Constitution wasn’t perfect, it has always trended toward more equitable justice. The days of restricted citizenry and the shameful three-fifths compromise have since been replaced by universal suffrage and major steps towards full equality for historically marginalized groups. Many of our most treasured and important rights were won in the courts, by judges using their constitutional authority to ensure the law lives up to its full promise. As we celebrate Constitution Day, we should oppose efforts to make our courts less independent or to strip their power to hold the economically and politically powerful accountable to the rule of law. Our democracy only thrives with a fair, accessible, and independent judicial system, made up of judges beholden only to the Constitution and American public.