Monday, January 17, 2022

The Imperial Court

“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 discontinuitya 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.  [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)  [THE ELECTORAL COLLEGE WITHOUT BLINDERS]  [NATIONAL POPULAR VOTE]

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