Standing, the Vietnam War and Other Roadblocks to Justice
The U.S. Supreme Court refused to hear any case challenging the constitutionality of the War in Vietnam. Congress, which is the only branch of government with the express constitutional power to declare war, did not do so. The Supreme Court refused in May 1968 to hear the case of Albert H. Holmes, a minister of the Jehovah's Witnesses faith who had contested the war through a claim that the draft was invalid. Only one member of the court, Justice William O. Douglas, voted to hear Holmes' appeal. Justice Douglas did that repeatedly as many Vietnam War cases reached the court.
I represented the United Steelworkers and the Made in the USA Foundation in a case challenging the constitutionality of the North American Free Trade Agreement. We challenged NAFTA because the constitution requires treaties to get a two-thirds vote in the Senate. NAFTA did not get two-thirds Senate approval. NAFTA was an end-run around the constitution, passed as simple legislation when it clearly was a treaty. Mexico passed NAFTA as a treaty under its constitution. However, the Eleventh Circuit Court of Appeals ruled that this case was not justiciable because it presented "political" questions and the Supreme Court denied review. It is interesting to note that the Supreme Court ducked challenges to the Vietnam War and NAFTA yet accepts nearly all abortion cases.
Israeli Border Wall Case
In stark contrast to the U.S. Supreme Court's denial of review of major government actions, wars and treaties, the Israeli high court reviews nearly every action of the government, including military decisions. Concerning the controversial border wall, built between Israel and the West Bank, the Court made the government re-route the wall to allow Palestinians access to certain areas. The Israeli court's policy of broad access to the courts has helped relieve some of the pressures in that society by giving all parties their day in court. The U.S. Supreme Court's unnecessarily strict standing and political question doctrine has frustrated millions of American citizens. The U.S. Supreme Court should have at least heard arguments in the Vietnam War and NAFTA cases, cases that involved express Constitutional provisions that were being ignored.
Life Tenure and Mandatory Retirement
Life expectancy was 38 years when the constitution was drafted in 1787. We should either get rid of life terms for federal judges or institute a maximum age of 75. Of course, many judges are mentally able beyond that age. However, I was arguing a case before an octogenarian federal judge who could not remember how he had ruled five minutes earlier. Such judges should be impeached but never are. U.S. federal judges should be limited to a fixed term of 12 or so years, or face mandatory retirement.
The U.S. Supreme Court should learn from the Israeli experience and try to be more Solomonic in its decision-making. While there are always winners and losers, it is a rare case where one side is 100% correct. Usually, both sides have a point. The U.S. court should also open up standing requirements and get rid of the political question doctrine. China uses this same doctrine to lock up dissenters and deny access to its court system. If any question before the court is political, it is the abortion issue. The court has waded deeply into the abortion issue, yet ducks many other major issues that should be decided by the courts.
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