The gentlemen of the Constitutional Tribunal deem themselves, and not the nation, to be the sovereign, stated Jaroslaw Kaczynski* on the television channel “Republika TV.” The nation chose PiS, which means it has given the party a moral mandate to change the judges who — as the chairman fears — will block reforms.
If Kaczynski would say such things in America, he would be labeled an anarchist or a lunatic. While theoretically a tripartite division of power applies in the United States, in practice the Supreme Court is the ultimate oracle — almost a god. All of the decisions made by President Obama are subject to verification; they require Congressional approval, or they can be undermined in the new enactment. Every decision taken by Congress is also subject to validation — first by the president, who can impose a veto on it, and afterwards by the Supreme Court, which can deem it incompatible with the Constitution.
Meanwhile, decisions made by the nine most important judges in Washington are final and indisputable (they possess more power than the Constitutional Tribunal of Poland [TK] because they adjudicate not only on the compatibility of new laws with the Constitution, but also on other matters). It is them — and not the president or Congress — who have the biggest influence on the lives of millions of Americans. In 1954, they put an end to race segregation in schools; in 1973, they made abortion legal; in 2000, they played a major part in George W. Bush becoming president instead of Al Gore; in 2012, they decided that Obama's controversial health care reform should be realized; in 2015, by their decision, homosexual people gained the right to marriage in all of the U.S.
Some people in the U.S. complain about the "Dictatorship of the Judges." They accuse them of making the law, while their job is supposed to be merely interpreting it. But this is just the opinion of journalists. It is absolutely unthinkable for someone from Obama's administration to send a letter to the Supreme Court saying that "in my opinion, the court's decision is not valid," like Beata Kempa, a member of the Polish Council of Ministers, did. Satirists would laugh at something of that sort for a long time.
Why is the Supreme Court's position so powerful? Well, it is because in American democracy the sovereign is not the nation, but the law. Yes, chairman Kaczynski! This matter was settled two centuries ago. The government of the U.S. is defined as the rule of law, not the rule of the people, as stated in 1803 by Chief Justice of the United States John Marshall, while adjudicating in the dispute between Judge William Marbury and the president at that time, Thomas Jefferson.
A dispute that was, by the way, very similar to our own; departing President John Adams nominated Marbury for judge on his last day in office, but for the formalities to be settled, Marbury had to receive the nomination in writing. But the new President Jefferson made the decision not to hand it over. Pursuant to the famous principle from the coatroom attendant in Mis,** "We don't have your coat — and what are you going to do?" A principle presently practiced by president Duda, who ignored TK's order to nominate three legally chosen judges at the end of Civic Platform’s governance.
Ergo, that which occupies the thoughts of all Polish people, the Americans overturned in 1803. The only consolation is that we are not that far behind the United States. Even 78 years ago, President Franklin Delano Roosevelt attempted a "jump" to the Supreme Court — similarly to Chairman Kaczynski.
Roosevelt was a great reformer, who pulled America out of the biggest economic crisis in the country's history. But when he assumed power in 1933, he inherited a conservative Supreme Court from his predecessor, which abolished a few of his reforms — deemed them to be against the Constitution, that is. In 1937, Roosevelt was crushingly victorious in the re-election, and similar to Chairman Kaczynski, he saw the nation as sovereign and not the judges.
He could not terminate the judges, as their appointment is for life (which makes them effectively independent). That is why Roosevelt proposed an enactment that would allow him to expand the numbers of the government — but the plan elicited significant quarrels, even amongst his own party, the Democrats. The leader of Senate Committee on the Judiciary, Democrat Henry F. Ashurst, sabotaged the project by delaying its placement in the committee’s plan of deliberations for six months. Finally, the matter was resolved by time; one of the judges decided to retire, which allowed Roosevelt to nominate his successor, although he let it go under the pressure of the public eye.
By extension, for us to be at peace with being only 78 years behind America, it requires some PiS politicians to oppose the chairman. Or at least one of them.
*Editor’s Note: Chairman of the Polish Law and Justice Party (PiS)
**Editor’s Note: "Teddy Bear," a Polish comedy movie