Miguel Trías, 11 July 2024
Image: Dani Duch
Last week we received news of three very controversial court rulings, two in Spain and one in the United States. In all three there is a common pattern, the absence of unanimity among the judges, in all cases divided between a conservative and a progressive bloc. I am referring to the U.S. Supreme Court ruling on presidential immunity, the ruling of our Constitutional Court on the case of the ERE in Andalusia and the Spanish Supreme Court ruling on the application of the Amnesty Law. I must confess that in all of them I feel more sympathetic to the minority that issues individual opinions than to the resolutions adopted by majority vote.
In the judgment of the U.S. court, I believe, with the progressive minority formed by the three judges, that the doctrine established constitutes a serious danger to the system of balances inherent to U.S. democracy, as it can make the actions of the president immune, no matter how serious and transgressive they may be. In the case of the ERE, I believe that our interpreter of the Constitution has not properly gauged the perception of tolerance towards corruption that its resolution extends. And, finally, in the case of the Amnesty Law, our Supreme Court seems to be more guided by finding the holes in the law to block its application than in interpreting it ponderously so that it can be deployed in a more effective way.
If there is any doubt that judges put their ideology first, the court undermines their authority.
Jurists who accede to the highest courts must be aware of the responsibility they assume. Their positions cannot be a reflection of political options, since, regardless of their ideology, unlike political positions, they are not elected by the democratic vote of the citizenry, but by the credit accumulated in their professional career. The moment there is any doubt that the magistrates put their personal ideology before the objective performance of the function assigned to them by the legal system, the court undermines their authority.
In all three cases, the group that makes up the majority of the jurisdictional body makes a considerable argumentative effort to support its position, but all of them are left with the deep impression that they have allowed themselves to be carried away by their ideological positions in order to later find the legal basis on which to base their resolution. This exercise, which good judges often do, of analyzing the specific case according to their perception of what is just, and then applying the law by giving it the appropriate interpretation, can turn into arbitrariness when it is carried out by the highest courts in cases of a markedly political nature. When faced with rulings of such relevance, it is essential for judges to set aside their emotions and personal positions and carefully gauge the effects of their decisions and the public’s perception that the court has acted as an objective interpreter.
https://www.lavanguardia.com/opinion/20240711/9794488/tribunales-polarizados.html
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