THE
CONSTITUTION is the first law—“the supreme law of the land”—and the acts of the
three branches “shall be made in
pursuance thereof.” Otherwise they are
invalid – “any thing to the contrary notwithstanding.” (Article VI, Clause 2)
The President of the United States is not
a monarch. The Supreme Court may play
pretend. But that does not make it so. And after the immunity decision, neither an
x-ray nor an MRI is necessary to show that a malignancy threatens the life of
the Republic.
I. ICU
Chief Justice John Roberts does not
deserve a point by point rebuttal of his ridiculous ruling. For the Chief Justice is a poor scholar who
quotes Alexander Hamilton—the strongest proponent of executive
power at the Convention—out of context to support immunity. (CJ Opinion, 21 & 47) But Hamilton knew that a republic is one
thing, a monarchy another.
“The President of the United States would
be an officer elected by the people for FOUR years; the king of Great
Britain is a perpetual and HEREDITARY prince.
The one would be amenable to personal punishment and disgrace; the person of
the other is sacred and inviolable.” (The Federalist Papers, No.
69) “…(I)n a republic...every
magistrate ought to be personally responsible for his behavior in office.”
(Alexander Hamilton, The Federalist Papers, No. 70;
emphasis added) In England, there is a different
maxim—“the king himself can do no wrong”—which is “for the sake of the public peace.” (Commentaries on the Laws of England
by William Blackstone, Volume I, 237 & Alexander Hamilton, The
Federalist Papers, No. 70, respectively)
Despite the claims of the Chief Justice to
the contrary, the ruling was made for one individual. “...(T)he President cannot be prosecuted for
conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from
prosecution for the alleged conduct involving his discussions with Justice
Department officials.” (CJ Opinion, 21) Instead of Petitioner, the Chief Justice uses
the gentleman’s name.
By this decision, the Chief Justice and
his associates have shown that they are unfit Judges and, if they had a sense of honor, they would resign. For no serious jurist would say, “The
President is not above the law” and then conclude that “the system of separated
powers designed by the Framers has always demanded an energetic, independent
Executive. The President therefore may not be prosecuted for exercising
his core constitutional powers, and he is entitled, at a minimum, to a
presumptive immunity from prosecution for all his official acts.” (CJ Opinion, 50) That cannot be so when Alexander Hamilton—the
strongest proponent of executive power at the Convention—said NO. Therefore former Attorneys General, retired
Judges and prosecutors, law professors and historians must demand that they resign.
II. Appearances and Reality
A
proper diagnosis comes before a cure. Had
Doc recommended the guillotine for a headache, my confidence in her would have
been greatly diminished. Instead, she
said, “I have your complete medical records,” which produced a better result. Imagine that, someone looking at history for
guidance. Nevertheless, one sharp idea
to change the Court is a Rube Goldberg contraption—term limits, two appointments
per President, and mandatory retirement.
The prospect of the deadly blade creates
more drama than the usual snappy soundbite.
But neither cruel and usual punishment nor musical chairs will do. Confusion must be replaced by clarity. With the malignancy of bad decisions tainting
the blood of the judiciary and poisoning the body politic, a transfusion is
part of the preparation for a transplant, and a more likely lifesaving measure
than Robespierre’s surgery.
“Of the three powers…, the JUDICIARY is
next to nothing.” (Montesquieu, The
Spirit of the Laws, Volume I, 186, as quoted by Alexander Hamilton, The
Federalist Papers, No. 78) Thus, the
tenure of those on the bench was not extended to make them barons. The intention was to strengthen inherent
weakness. Only a few would be equal to
the task, and time was needed to take advantage of their talents.
Unlike the political branches, the
judiciary lacks an effective removal power, which is based on a misunderstanding. According to the Constitution, “The Judges,
both of the Supreme and inferior courts, shall hold their offices during good
behavior….” (Article III, Section 1) The position is not a lifetime
appointment; it is conditional according to Sir Edward Coke, Matthew Bacon, and
Sir William Blackstone. (Institutes
of the Laws of England by Sir Edward Coke, A
New Abridgment of the Law by Matthew Bacon, and Commentaries
on the Laws of England by Sir William Blackstone) Thus, “good behavior” can be enforced by a
scire facias judicial proceeding under the “necessary and proper” clause and
also under that which limits the Supreme Court’s jurisdiction. (Article III, Section 1; Article I, Section
8, Clause 18 & Article III, Section, Clause 2) Of the three methods of removal—resignation,
which depends upon the individual, and impeachment, which depends upon the
House and the Senate—it is the third that is most likely to be a check on those
who miss the mark; and Judge Cannon’s dismissal of the indictment against the gentleman
from New York makes the case for an effective judicial removal power.
III. The Seven I’s
The President “shall nominate,
and by and with the advice and consent of the Senate, shall appoint...Judges of
the Supreme Court....” (Article II, Section 2, Clause 2) History has provided enough experience
to inform our contemporary conduct. There
has been a tendency to view an individual in isolation. But a law degree, law review, a law license,
a clerkship, and a favorable rating from the American Bar Association is only a
start. A favorable rating from the American
Historical Association sets the stage for a comprehensive approach. A rigorous nomination and confirmation
process, which is focused on creating a Court that can “establish justice” with
members who are “faithful guardians of the Constitution,” weighs the essential elements
carefully—the institution, the individual, ideology, interaction, image,
impact, and intersection. (Preamble
& Alexander Hamilton, The Federalist Papers No. 78)
The Court, when properly functioning, is a
collegial body that respects Alexander Hamilton’s basic requirements. First, the importance of reason. Because the judiciary has “merely
judgment,” opinions are persuasive if they make sense. Second, awareness of its role. The judiciary must have “complete
independence…to do their duty as faithful guardians of the Constitution.” (Alexander Hamilton,
The Federalist Papers, No. 78) Third,
the exercise of restraint. “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….” (Alexander Hamilton, The Federalist Papers,
No. 78) Otherwise, the judiciary fails. And to be respected, the institution must
remember that Hamilton consistently referred to “courts of justice”—not a court
of law that can be technically right and totally wrong.
The current composition of the institution
needs to be carefully considered. When
an individual is nominated, two questions will have already been addressed: Is the Court meeting the basic requirements? And if not, what is necessary to do so?
Ideology, a leading cause of blindness,
cannot be ignored and merits a thorough examination. A nominee who seeks the truth—and is not a
predictable vote—is invaluable. For as
an artist looks at a subject or object from various angles, so must the Court
look at cases from different points of view.
The interaction of the institution, the
individual, and ideology affects the Court’s image. Yet more must be done to restore its
legitimacy and to raise its stature.
Appearances may help, but a lasting impression depends upon the conduct
of the Court.
The impact of their decisions on lives and
jurisprudence must be anticipated across a wide range of scenarios by the President when making a
nomination and the Senate during confirmation.
At committee hearings, historians and political scientists can discuss
possibilities and contingency planning. The
nominee, although unlikely to answer, could be questioned about the same. If nothing else, that individual will be made
aware of a world beyond the ivory tower.
And if, by law, a decision required a judicial impact statement, that may
focus the mind.
“…(L)iberty 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….” (Alexander Hamilton, The Federalist Papers, No.
78; emphasis added) Thus, the
intersection or union with the other branches undermines the constitutional
design and endangers the freedom the separation of powers was meant to defend.
There is no mystery as to how a nominal
and apparent separation came to pass. A
departure from “the original intention” of the Framers has been disguised by
the misrepresentation and misuse of a misunderstood institution. The Electoral College has two functions—popular
choice and national security. In
2000, the former was overridden by the Supreme Court in an act of judicial
usurpation—stopping the counting of ballots in Florida—even though James Madison said, at the Federal
Convention, that was “out of the question.”
(Speech, July 25, 1787) In 2016,
in addition to popular choice, national security concerns in regard to the
Russian Connection were dismissed, even though Alexander Hamilton said, “Nothing was more
to be desired than that every practicable obstacle should be opposed to cabal,
intrigue, and corruption. These most deadly adversaries of
republican government might naturally have been expected to make their
approaches from more than one quarter, but chiefly from the desire in foreign
powers to gain an improper ascendant in our councils. How could they
better gratify this, than by raising a creature of their own to the Chief Magistracy
of the Union?” (Alexander Hamilton, The
Federalist Papers, No. 68) Unfortunately, at the time of
the Convention, there was no way to reduce "the different qualifications in
the different States to one uniform rule," which left a series of hurdles.
(James Madison, The Federalist Papers, No. 52) But now, because of the Fourteenth, Fifteenth, Nineteenth,
and Twenty-sixth Amendments, there is a national standard with
consequences for States that deny or abridge the right to vote, and,
therefore, at long last, “the original intention” of James Madison and Alexander Hamilton will come to pass
that “The President of
the United States would be an officer elected by the people…” (Alexander Hamilton, The Federalist Papers, No. 69)
The National Popular Vote will make it so.
When the senior Senator
from Kentucky was Majority Leader, he laid out his way of amending the Constitution—making stuff up. On February 13, 2016, President Obama
was not permitted to make an appointment, when the opportunity arose, based on
a remarkable statement—“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. Yet on October 26, 2020, days before the
election, Mitch McConnell made sure Amy Coney Barrett was confirmed by the Senate.
The combination of the misrepresentation
and misuse of the Electoral College, along with the magical McConnell Amendments, resulted in John Roberts,
Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joining Clarence Thomas on
the bench and the creation of a political discontinuity, a misalignment of means and ends—a condition
where a minority rules a majority, which, as Hamilton noted, “contradicts that fundamental maxim
of republican government, which requires that the sense of the majority should prevail.” (The Federalist Papers, No. 22) The National Popular Vote
allows the Electoral College to perform its two
functions—popular choice and national security—and insures that
appointments will not be made by someone with the fewest votes.
The
Rube Goldberg contraption does nothing about the malignancy on the Court. It is a placebo, not medicine. A rigorous nomination
and confirmation process stands in stark contrast to how six strict “constructionists” got their seats. The unhealthy growth was a result of two
dubious elections which made their ascension possible, and that is why Supreme Court
reform must include the National Popular Vote so that the President is the
popular choice. The Rube Goldberg
contraption—term limits and two appointments per President and mandatory retirement—does
none of those things. Furthermore, a
rigorous nomination and confirmation process provides the perfect opportunity
to make the case for Court expansion. That
was last done in 1869 when the number of Justices was increased to nine to
match the number of Courts of Appeals. At
present, there are thirteen circuits. Therefore
four Justices need to be added to match the number of circuits; one Justice to
oversee one circuit.
IV. The Point
“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; emphasis added)
Judicial review is vital to the health of
the American Republic. Judges engaged in
a long train of abuses and usurpations are not.
They must be reminded that checks and balances apply to them as well.
(c)2024 Marvin D. Jones. All rights reserved.
https://d3i6fh83elv35t.cloudfront.net/static/2024/07/scotus_immunity-7-1.pdf
[CJ
Opinion]
https://www.nytimes.com/2024/07/08/us/politics/amy-coney-barrett-supreme-court-justice.html
[The
New York Times fluff piece regarding Amy Coney Barrett’s “independent streak”]
http://marvindjones.blogspot.com/2019/08/the-electoral-college-without-blinders.html
[The
Electoral College Without Blinders]
https://www.nationalpopularvote.com
[National
Popular Vote]
Background:
https://marvindjones.blogspot.com/2024/06/impunity.html
[Impunity!]
https://marvindjones.blogspot.com/2023/08/the-most-dangerouswith-lifetime-tenure.html
[The Most Dangerous...With Lifetime Tenure]
https://marvindjones.blogspot.com/2018/10/the-least-dangerousduring-good-behavior.html
[The Least Dangerous...During Good Behavior]
