Marbury v. Madison, decided in 1803, established the American Judiciary as a co-equal branch of government.
It cemented the power of judicial review, enabling the courts to check the powers of the legislative and executive branches by striking down statutes, rules and actions antithetical to the U.S. Constitution.
But despite this co-equal status, the judiciary is steeped in what at times appears to be antiquated tradition and secrecy - perpetuated by the relative slowness it takes to change law though the judicial process, and perhaps contributing to the current showdown in Washington.
Maybe the most obvious example is the prohibition on photography and video cameras in almost all Federal Courtrooms, including the Supreme Court 鈥� leaving the proceedings to be visualized through artist renderings that may be quaint, but not very useful.
Our current Supreme Court justices have a variety of opinions on whether or not cameras should continue to be banned. In 1993 Justice Ginsburg admitted she didn鈥檛 mind having proceedings televised, saying 鈥淚 think it would be good for the public.鈥� And Justice Kagan has suggested that cameras 鈥渨ould make people feel so good about this branch of government and how it鈥檚 operating ...鈥�
Another likely factor is the use of Latin in the courtroom. Legal decisions are full of code 鈥� and nowhere is the code more apparent than in the use of ancient Latin phrases. For example, judges often review documents and sometimes discuss cases with attorneys 鈥渋n camera鈥� which roughly translates to 鈥� in the judge鈥檚 private chambers. And both the language and the action it describes can be opaque. Some argue in favor of this lack of transparency by saying the need for secrecy is 鈥渞es ipsa loquitur鈥� 鈥� meaning 鈥渋t speaks for itself鈥� - but I鈥檓 not so sure.
Wearing black robes, addressing the judge as 鈥測our honor鈥� and elevating the judge or justices above the courtroom add to the atmosphere of secrecy and deference. And while this is all quite intentional, perhaps we should take a fresh look at whether it鈥檚 still really necessary.
In any case, we can be grateful that neither jurists nor attorneys in this country have to wear the powdered wigs still favored in the British Commonwealth.
