Subsection 3.   The Ultimate Interpreter of the Law

 

Since it is impossible to have flawless law in the world, many issues fall into the gray area where no one command black and white solutions. Let us cite two classic legal examples.

 

A ship capsized during a violent storm. A few lucky survivors of the crew drifted on a lifeboat. Fresh water and food rations began to run out, so the remaining survivors began to eat the meat of those who died. There was only one survivor remaining when rescuers arrived and saved him. In the end, the government accused this survivor of murder and cannibalism. Is this poor survivor guilty?

 

A woman who gets an abortion is accused of killing her unborn baby. In this case, it is crucial to clarify when life begin. Does it start from the moment the woman becomes pregnant? Or from when the baby is born? Or from some stage between those last two points?

 

From the two examples above, we can see that whoever holds the final interpretation of the law also holds the right to render a decision. 

 

Subsection 3.1.  The United States Supreme Court

 

In the United States, the ultimate right to interpret the law and make decision rests with the Federal Supreme Court. The two cases mentioned above are true stories, and are actually famous Supreme Court rulings in history. These precedents have a profound impact on American society. The abortion case mentioned above concluded in 1973 when abortion was ruled to be constitutional, yet this topic is still endlessly debated in the society and legal profession today. 

 

Anti-abortion groups in the United States are still trying to overturn the legalization of abortion. In the hall of the Supreme Court  and even during the Presidential election, candidates must take a stance in favor of or in opposition to abortion.

 

According to the United States Constitution, to impeach or deprive the President of his position,  the prosecution must be initiated by the House of Representatives. The Supreme Court manages the trial with the entire Senate serving as the jury. A decision is reached only after a trial. In the Constitution, impeachable offense requires the President to be convicted of a so-called “high crime and misdemeanor”, but there is no legal precedent to define it. In the event there is an impeachment and debate ensues, who would have the right to interpret the meaning of "high crime and misdemeanor?". The answer is the United States Supreme Court.

 

The political system of the United States contains the three branches,  the legislative,  the judicial and executive that are separate with check and balance of power among them. The Supreme Court has the highest judicial authority. There are nine Supreme Court Justices.They are responsible for deciding the rulings of appeal cases that other judicial bodies were unable to solve. They also resolve disputes between the states. However, their most important and primary rulings are to decide cases where questions of lawfulness under the Constitution are raised.  When any case gets to the Supreme Court, its ruling is final.

 

Subsection 3.2 The Balance of Power and a Life Long Tenure

 

Since the Supreme Court has so much power, the appointment of each of its nine justices is of course very important. 

 

When there is a vacant positions in the Supreme Court, the President makes the nomination.The nominee needs to be examined by Congress in a hearing and confirmed by the Senate before the nominee is officially appointed. The Supreme Court's power is great. The nine Justices have the authority to interpret the Constitution, determine whether an act passed by Congress is unconstitutional, and even interpret if the President has performed a “misdemeanor”. However, for a Justice to be appointed, he or she must pass through the President and Congress. This  is an example of  how the American political system of three separate and equal branches functions with checks and balances.

 

The most important aspect of the Federal judicial system is that Federal  judges are appointed for life. In other words, aside from retirement, death, or committing a crime, no one can take away their status. For example, former Supreme Court Justice William Brennan served for thirty-three years under eight presidents. In 1990, the eighty year old judge with poor health chose to retire. In 1991, the famous liberal Justice Marshall, the only black justice in the Supreme Court at the time, announced his retirement due to old age and ill health.

 

Justices serve for life and are not subject to constraints or influences and can make the most objective decision. The decisions of the Supreme Court are final; the other branches such as  Legislative or Executive, the President or Congress member cannot do anything about those decisions no matter how detestable they find them. Although a Justice is nominated by the President and confirmed by Congress, once he is in office he is not influenced by either the President or Congress who cannot remove him  no matter how intensely he is disliked. The most famous example took place in 1952 when President Eisenhower nominated former Republican governor of California, Earl Warren, as Chief Justice. Later when Justice Warren strongly advocated for the ruling of the “Brown” case, a landmark for racial equality, President Eisenhower believed that nominating Justice Warren had been the biggest mistake of his life. 

 

Subsection 3.3  Justices and Politics

 

In theory, the Justices of the Supreme Court are not affected by the President or Congress. However a Justice’s own inclinations have  a great political influence. This is why when there is a vacancy in the Supreme Court. the President, Congress and the people always pay a great deal of attention to the nomination of a new Supreme Court Justice. After taking office, the Justice is not influenced by the President, but if the views of the Justice are close to those of the President, it will be very advantageous for the President. 

 

During the "Watergate Scandal", it was not certain that President Nixon would really be impeached, but he saw that most of the nine Justices were not members of his own Republican Party. On balance, he did not want to risk impeachment, so he voluntarily resigned and gloomily departed.  From a different perspective, if the majority of the Supreme Court Justices had leaned towards the Republican Party, it is possible the American history of the 1970’s would have to be rewritten. 

 

Another famous example was President Roosevelt's fight with the Supreme Court.

 

In 1932, President Roosevelt and the Supreme Court had fiercely incompatible relations. Every single bill President Roosevelt proposed to solve the economic depression was overturned by the Supreme Court as too close to socialism and not compatible with the capitalist spirit of the Constitution. The outraged President Roosevelt then declared that while he could not force the nine Justices to pass his bills, he would appoint nine or more new Justices to the Supreme Court until his bills passed (there were traditionally nine Justices in the Supreme Court but that was not mandated by the Constitution. The Congress during Roosevelt's time had a Democratic majority so if he really insisted on adding more Justices, it was not impossible). At the time Roosevelt wanted only to intimidate; he did not go through with it in the end.

 

The appointment of Supreme Court Justices has an powerful influence on the President and Congress and naturally receives serious attention. Because the ultimate interpretation of the lawfulness of issues such as abortion, or granting benefits to illegal resident, the liberal or conservative tendencies of the Supreme Court’s directly or indirectly affect the entire American society and the lives of every individual.  Not only groups and organizations but even the common folks should be concerned and pay attention.

 

                                                      Section 4.  Who executes the law?

 

The words “interpretation" and "execution" are not commonly used words for the average person, but they are the most basic concepts that must be grasped by a lawyer. As we have discussed, when it comes to resolving a lawsuit, the person who interprets the law is the most important. But the person who is the executor is also decisive. Because if laws were only interpreted but not executed or enforced, they would merely be waste paper. 

 

To explain these two concepts, let us use as examples cases where landlords evict  their  tenants. If a tenant owes the landlord rent, the landlord will demand the tenant to be evicted. After the judge reads the lease and takes into account the evidence provided by both sides, the ruling will make the landlord the winner of the case. However in the United States, the judge's ruling does not mean that the lawsuit is settled. The landlord still has to take the paperwork with the judge’s ruling and bring it to the local police station to request the execution of the judgment. It is not until the county police department (or sheriff) verifies the documents and the landlord fills out the paperwork and pays the fee before the police go to the landlord's property and nail an eviction notice on the door. The tenant has to automatically move out in the given time period (usually several days); otherwise county police will enforce the eviction. On the day of the deadline after the police arrive, if nothing unexpected happens, the tenant will just move out. After the prior tenant moves out, the landlord will usually change the locks immediately in order to carry out rehabilitation work.

 

The example above with the landlord evicting the tenant is the simplest and most typical execution procedure of a civil judgment. While this procedure seems simple enough, it takes a lot of time and legal fees to implement. Moreover, there are often unexpected side issues that the plaintiff must take the time to deal with. The small matter of evicting a tenant has been quite difficult to implement. It goes without saying that the difficulty increases for more complex cases. After the lawsuit is successful, it is common to spend more energy, time and money to enforce than winning the lawsuit. Therefore, when a lawyer is evaluating whether a lawsuit is worth taking on, he must consider who will be the executor in case the lawsuit is won. What are the cost and degree of difficulty to execute? This matter should be explained clearly to the client. 

 

Section 5. The Fundamental Legal Rights of Individuals—Having Rights Means Having Obligations

 

In American television and even in Hong Kong movies, we often see a police officer arrest a suspect and the police officer will say in a monotone to the suspect, “You have the right to remain silent. Anything you say can and will be used against you in a court of law”. After arriving at the police station, the police will ask for statements and the suspects will reply with,“ I have the right to see my lawyer!”.

 

When we face an arrest, do we really have the right to remain silent? What are the consequences of talking? Under what circumstances do the police have the right to arrest a person? When an ordinary person’s freedom is interfered with, what fundamental rights does he have under the law?

 

The basic rights of individuals under American law are based on the fundamental principles laid down by the Constitution in 1791. The most critical among them are the first Ten Amendments to the Constitution, also known as the "Bill of Rights”.

 

First, we use the Fifth Amendment as an illustration.