“Ultimately in our system of government the Supreme
Court is first among equals.” (First
Among Equals by Kenneth W. Starr, xvi)
THE UNITED STATES OF AMERICA won independence despite the
Articles of Confederation, and the Constitution
was created to overcome that document’s defects. But the transition from the one to the other
is not quite done.
The Articles
of Confederation were an invitation to confusion, which some seek to
reintroduce. For a basic principle of
Anglo-American jurisprudence acknowledged by William Blackstone, James Madison,
and Chief Justice John Marshall —“Where there is a right, there is a
remedy”—was violated by the Texas abortion law, which has effectively
overturned Roe v. Wade in that State. Yet certain members of the High Court did so too
through the shadow docket and violated the supremacy clause: “This Constitution, and the laws of the
United States which shall be made in pursuance thereof…shall be the supreme law
of the land…any thing in the Constitution or laws of any State to the contrary notwithstanding.” (Article VI, Clause 2)
I. The Least
Dangerous?
Judicial review is vital to the health of
the American Republic, as Alexander Hamilton made clear. “The complete independence of the courts of
justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one
which contains certain specified exceptions to the legislative authority; such,
for instance, as that it shall pass no bills of attainder, no ex-post-facto
laws, and the like. Limitations of this kind can be preserved in practice no other way than
through the medium of courts of
justice, whose duty it must be to declare all acts contrary to the manifest
tenor of the Constitution void. Without
this, all the reservations of particular rights or privileges would amount to
nothing.” But for some, the oath
is meaningless, and the duty to be “faithful guardians of the Constitution” is
lost. (The Federalist Papers, No.
78; emphasis added)
Even before we
became free, the country’s birth certificate declared that rights were to be
protected by governments “deriving their just powers from the consent of the
governed.” Then the Constitution did so,
creating, in Benjamin Franklin’s words, "A republic, if you can keep it." And James Madison’s definition
hearkened back to the Declaration: “A
republic, by which I mean a government in which the scheme of representation
takes place....” (The Federalist
Papers, No. 10) Thus, one thing about
“the manifest tenor of the Constitution” is beyond reasonable doubt. (Alexander Hamilton, The Federalist Papers,
No. 78) From beginning to end, America
is a republic and the right to vote is inherent to the same. And the Framers added an exclamation point, because
according to Article IV, Section 4, “The United States shall
guarantee to every State in this Union a republican form of government....”
The right Thomas
Paine said made all others possible—the right to vote—is now in jeopardy, and the
Court has put it at risk repeatedly. In
2000, Justice Scalia stopped the counting of votes in Florida with an
injunction, even though James Madison said at the Federal Convention the involvement
of the national judiciary “was out of the question.” Nevertheless, Chief Justice Rehnquist wrote
the majority opinion in Bush v. Gore that installed the Governor of
Texas, even though Madison said at the Convention, in regard to the Electoral College,
the President “is now to be elected by the people.” Furthermore, if no one had a majority, the
decision would be made by the House of Representatives. In 2013, Chief Justice Roberts wrote
the majority opinion in Shelby v. Holder that gutted Section 5 of the Voting
Rights Act. That provision required
States or localities with a history of discrimination to get pre-clearance from
the Department of Justice before changing laws, rules, or procedures related to
voting. In 2021, Justice Alito wrote the
majority opinion in Brnovich v. Democratic National Committee that
gutted Section 2. That provision created
an effects test, that is, it prohibited laws whose actual impact was discriminatory. But the Court has denied and abridged the consent
of the governed and made a republic harder to keep.
II. Original
Intention
“To avoid an arbitrary discretion in the
courts, it is indispensable that they should be bound down by strict
rules and precedents, which serve to define and point out their duty in every
particular case that comes before them;
and it will readily be conceived from the variety of controversies which grow
out of the folly and wickedness of mankind, that the
records of those precedents must unavoidably swell to a very considerable bulk,
and must demand long and laborious study to acquire a competent knowledge of
them.” (Alexander Hamilton, The Federalist
Papers, No. 78; emphasis added)
The Court is a collegial body that exists to
“establish justice.” (Preamble) It is not a lifetime Cabinet with a Prime Minister
in a robe. “The Judges, both of the
Supreme and inferior Courts, shall hold their offices during good
behavior….” (Article III, Section 1) Thus, jurists’ deeds must be consistent with their
trust. Only then can their tenure
continue, as they become acquainted with those “strict rules and precedents.”
The question
of “good behavior” arises because of the aforementioned violations of a basic
principle of Anglo-American jurisprudence—“Where there is a right, there is a
remedy”—and the supremacy clause, as well as “the manifest tenor
of the Constitution.” (Article VI,
Clause 2 & Alexander Hamilton, The Federalist Papers, No. 78) For Judges, like “all civil officers of the United States, shall be removed from
office on impeachment for, and conviction of, treason, bribery, or other high
crimes and misdemeanors.” (Article II, Section
4; emphasis added)
It is a mistake
to view things in isolation. The present
imbalance is related to past dubious elections. They were made possible due to the misrepresentation and
misuse of a misunderstood institution.
The Electoral College
has two functions—popular choice and national
security. In 2000, there was a
failure in Florida to observe the first and to follow the constitutional procedure. In 2016, foreign
influence was a problem—one the Framers feared.
But the Electors failed to act as the final check on fraud and terminate
the threat. Popular choice and
national security were cast aside, which caused a political discontinuity—a misalignment of means and ends, a condition where a
minority rules the majority. Thus,
the results in 2000 allowed the man the Court promoted to put John Roberts and
Samuel Alito on the bench; and the results in 2016 allowed the man who
benefited from the Russian Connection to add Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
“…(T)here is one basic check on a runaway
Court: presidential elections,” as Professor Bruce Ackerman pointed out in noting the
significance of Bush v. Gore. “The Supreme Court cannot be
permitted to arrange for its own succession.
To allow (Bush the Younger) to serve as the Court’s agent is a fundamental violation of the separation of powers…. The right-wing bloc on the Court should not
be permitted to extend its control for a decade or more simply because it
has put George W. Bush into the White House.” (Emphasis added)
The situation has gotten worse. On February 13, 2016, a duly elected
President was not permitted to make an appointment, when the opportunity arose,
based on a remarkable statement by Senator Mitch McConnell—“The American people
should have a voice in the selection of their next Supreme Court Justice”—which
was used to deny a hearing and a vote on the nomination of Merrick Garland. But in 2020, the McConnell Rule changed so
Amy Coney Barrett could be confirmed.
Now comes resonance in the presence of the
past. Professor Ackerman’s concern over
“a fundamental violation of the separation of powers” was shared by Alexander Hamilton.
“…
(T)hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be
endangered from that quarter; I mean so long as the judiciary remains truly
distinct from both the Legislature and the Executive. For I agree, that ‘there is no liberty, if the
power of judging be not separated from the legislative and executive powers.’ And it proves, in the last place, that as
liberty can have nothing to fear from the judiciary alone, but would have every
thing to fear from its union with either of the other departments; that as all
the effects of such a union must ensue from a dependence of the former on the
latter, notwithstanding a nominal and apparent
separation…”. (The Federalist
Papers, No. 78; emphasis added)
III. Approbation
No to the
views of ire that would descend the darkest reaches of invention. Reform must mean a return to origins, to the
intentions of the Framers—and redeem the Court thereby. Thus, the number of seats must not be increased
at random but be equal to the Courts of Appeals, and each Justice would oversee
a circuit.
Nominations
and hearings regarding Judges need a new S.O.P.
These are the essential elements that must be weighed—the institution,
the individual, ideology, interaction, image, impact, and intersection.Thus, the current composition of the institution needs to be carefully considered. An individual
who seeks truth—and is not a predictable vote—is invaluable, for ideology is a leading cause of blindness. Their interaction
will affect the image of the
institution and its ingredients. The impact on American jurisprudence and
American lives will be significant, in a positive sense, provided respect is
paid to Hamilton’s basic requirements of the least dangerous branch—the
importance of reason, awareness of
its role, and the exercise of restraint.
If acted upon, they make it unlikely that “a long train of abuses
and usurpations” will continue. But one
fault merits immediate removal from the bench, because the intersection or union with the other branches undermines the
constitutional design and endangers the freedom the separation of powers was
meant to defend.
Much of the
problem is one of neglect, a failure to exercise options readily available. In regard to the Electoral College, the press
could help by educating the public about its two functions—popular choice and
national security—and the politicians could enact the National Popular Vote so
that it is clear to the Electors who must perform them. In regard to nominations, the i’s have it.
Beyond appointments
and removal, thought must be given to regular review of judicial conduct. A House Judiciary
Subcommittee to enforce “good behavior” would be the place for professional and
public complaints, which, if criminal, shall be referred to the Department
of Justice—and that must be done when nominees commit perjury before the Senate. Finally, Judges who hide behind unsigned
orders are unworthy to sit on any bench.
In the future, they must be required to sign by law. Meanwhile, waterboys should stand while
guarding the bucket—and wear a dunce cap.
IV. The End
The transition
from the Articles to the Constitution was necessary to correct the shortcomings
of the former. Then
something vital could be done.
“A circumstance which crowns the defects
of the Confederation remains yet to be mentioned, the want of a judiciary power. Laws
are a dead letter without courts to expound and define their true meaning
and operation…. To produce
uniformity in these determinations, they ought to be submitted, in the last
resort, to one SUPREME TRIBUNAL.”
(Alexander Hamilton, The Federalist Papers, No. 22, italics added;
CAPITAL emphasis Hamilton’s)
Because Chief Justice John Marshall
understood the importance of reason,
the Court’s role, and the exercise of restraint, he
produced uniformity in the determinations of the SUPREME TRIBUNAL. Out of 1,129 cases, 1,042 were unanimous.
(c)2022 Marvin
D. Jones. All rights reserved.
https://www.marvindjones.blogspot.com/2018/10/the-least-dangerousduring-good-behavior.html [THE LEAST DANGEROUS…DURING GOOD BEHAVIOR]
James Madison’s extended definition of a republic:
...(W)e
may define a republic to be, or at least may bestow that name on, a government which
derives all its powers directly or indirectly from the great body of the
people, and is
administered by persons holding their offices during pleasure, for a limited
period, or during good
behavior. It is ESSENTIAL to such a
government that it be derived from the great body
of the society, not from an inconsiderable proportion, or a favored class of
it; otherwise a
handful of tyrannical nobles, exercising their oppressions by a delegation of their
powers, might aspire to the rank of republicans, and claim for their government
the honorable
title of republic. It is SUFFICIENT for
such a government that the persons administering it be appointed, either directly or indirectly, by the
people; and that they hold their
appointments by either of the tenures just specified; otherwise every government in the
United States, as well as every other popular government that has been or can
be well
organized or well executed, would be degraded from the republican
character. (The
Federalist Papers, No. 39; CAPITAL emphasis Madison's; italics added)
https://www.marvindjones.blogspot.com/2019/08/the-electoral-college-without-blinders.html [THE ELECTORAL COLLEGE WITHOUT BLINDERS]
https://www.nationalpopularvote.com [NATIONAL POPULAR VOTE]
