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OpEdNews Op Eds    H1'ed 12/2/21

The Supreme Court is the most Dangerous Branch of the Federal Government

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US Supreme Court
US Supreme Court
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In Federalist No. 78, Hamilton said that the Judiciary branch of the proposed government would be the weakest of the three branches because it had "no influence over either the sword or the purse, ...It may truly be said to have neither FORCE nor WILL, but merely judgment." Federalist No. 78 quotes Montesquieu: "Of the three powers [...], the judiciary is next to nothing." There was little concern that the judiciary might be able to overpower the political branches; since Congress controlled the flow of money and the President the military, courts did not have nearly the same power from a constitutional design standpoint. The Judiciary would depend on the political branches to uphold its judgments. Legal academics often argue over Hamilton's description of the judiciary as the "least dangerous" branch. Hamilton also explains how federal judges should retain life terms if those judges exhibit good behavior.

As there are always two sides to an argument, let us not forget the Anti-Federalist point of view. In Brutus XIV, it is maintained "that the supreme court under this constitution would be exalted above all other power in the government, and subject to no control." Brutus explains this position and discusses the dangers arising from giving the judiciary its power to review and decide on the Constitutionality of the actions of the other branches. He points out that "There is no power above them that can correct their errors or control their decisions," "they cannot be removed from office or suffer a diminution of their salaries, for any error in judgment or want of capacity," and "the power of this court is in many cases superior to that of the legislature." To prove the last point, Brutus says that "the supreme court . . . have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away." Brutus also warns "Men placed in this situation will generally soon feel themselves independent of heaven itself." Brutus shows habbits of the court on which we see today: "Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one. These cases will immediately affect individuals only; so that a series of determinations will probably take place before even the people will be informed of them. In the mean time all the art and address of those who wish for the change will be employed to make converts to their opinion." But in recent decades, dysfunctional legislators have prioritized staying in office and have ran away from debates. Their refusal to write laws that would force them to choose sides has conferred power on the judicial branch and judges have sprinted with glee into the vacuum to make the laws themselves. The seeds of today's hyperpolitical Court in the infamous Dred Scott decision of 1857, which overturned Congress's ban on slavery outside the South. To justify that ruling, the justices invented (meaning made up, imaginary") the concept of "substantive due process" as a way of granting new rights not specifically included in the Constitution.

The idea was dormant until 1905, when a Supreme Court majority brought back substantive due process to strike down a state law that set maximum hours for factory workers. The case, Lochner v. New York, was cited for 30 years to cancel scores of progressive labor laws. Essentially, the justices could overturn legislation in favor of their own values.

Justice Clarence Thomas said that the justices do not rule based on "personal preferences" and that politicians should not "allow others to manipulate our institutions when we don't get the outcome that we like," per the Washington Post (September 16, 2021 at 7:16 p.m. EDT) (we all know he didn't mean a word of it).

Judges themselves, are supposed to be neutral and impartial. But when you have presidents choosing who they want on the bench, they become political appointees. Per the "The Code of Conduct for United States Judges", "An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective." Also, "A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment." However, every time a judge is selected, it is along party lines and that Judge just so happens to agree with that party.

The role of the Executive branch and the Senate in the nomination and confirmation process leads to the selection of justices whose ideological ideals to interpreting the law broadly align with the views shared by those political actors. It is hardly a coincidence, for example, that President Franklin Roosevelt's judicial appointees shared a view of federal power that allowed Roosevelt's New Deal reforms. Nor that the justices appointed by President Nixon had views of civil liberties and the rights of criminal defendants that were consistent with Nixon's "tough-on-crime" policy views. SCOTUS's pivot point is the Constitution along with the Federalist Papers, the Anti-Federalist papers (some of the founders were Anti-Federalists), and the founders letters and speeches (any judge that says it's hard to tell what the founders intended is either incompetent or lazy). If any judge has any political, party, theocratic leaning" that judge is neither neutral not impartial, thus is unfit for the bench. With Justice Amy Coney Barrett saying, "This court is not comprised of a bunch of partisan hacks." While adding, "Judicial philosophies are not the same as political parties," one can only laugh. Put aside the irony of these statements at an event honoring Sen. Mitch McConnell, who blocked the confirmation of Merrick Garland to the court (for childish political reasons) and rushed through the confirmation of Barrett precisely because of her ideologies, the reality is that the court's Republican majority has handed down decisions strongly favoring Republicans in the political process. Barrett said that she is an originalist, one who believes that the Constitution must be interpreted to mean what it might have meant (again, Federalist Papers, Anti-Federalist Papers, Letters/Speeches") at the time it was adopted. Yet none of the court's decisions about the election process favoring Republicans can be defended on originalist grounds (since said founders were against political parties even existing), which shows how wrong her claims really are.

In a series of rulings, with all the Republican-appointed justices in the majority, the court has strongly tilted the scales for elections in favor of Republicans. In 2010, in Citizens United vs. Federal Election Commission, the court ruled 5 to 4 that corporations can spend unlimited amounts to get candidates elected or defeated. Neither political expenditures nor corporations, as we know them today, even existed at the founding of this country. The court's conservative majority eviscerated the 1965 Voting Rights Act in a way that helps Republicans and hurts voters of color and Democrats. In 2013, in Shelby County vs. Holder, the court, 5 to 4, nullified the law's requirement that states with a history of discrimination get preclearance before making a change in their election systems. Every one of these states where preclearance was required was controlled by Republicans.

Chief Justice John G. Roberts Jr. wrote for the majority and said that Congress violated the principle of equal state sovereignty by not treating all states the same. Nowhere is that found in the Constitution (SCOTUS making up laws again) and it was certainly not the understanding when the 14th Amendment was created by a Congress that imposed Reconstruction, including military rule, on Southern states.

In these and other cases, the Republican justices changed the law (which is the job of the Legislature) to favor Republicans in the political process. Barrett's protest against the justices being seen as "partisan hacks" shows she is a liar. And it is laughable to say that "judicial philosophies are not the same as political parties." I would challenge her to give a single instance where the conservative justices on the court took positions that were against the views of the Republican Party. The most obvious example, of course, is abortion. The GOP vehemently opposes abortion rights (for no secular reason, showing their theocratic leaning) and Republican presidents have appointed justices with that view (there's that non-neutral/impartial thing again").

Let us not forget Judge Thomas gave a keynote address at a symposium celebrating his years on the Court at the right-wing Heritage Foundation, alongside McConnell (negating the earlier quote from him). Supreme Court decisions always have been and always will be a product of the ideology of the justices showing them unfit for the bench. No one should pretend otherwise. The court's docket is almost entirely discretionary (which is not Constitutional). The justices decide which cases they want to hear (not Constitutional). And too often, they choose to hear cases involving issues that would better be left to the political branches (showing, again, they are not neutral/impartial). This court, like past courts, will have an activist agenda. The true peril posed by the Supreme Court in our time lies in the idea that the Court can ever serve as an ally to someone other than the law, that it can resolve political difficulties, and that it can be counted upon as a political partner or an agent of political reform (invalidating their neutrality). It should do none of those, and threatens our constitutional order and the Republic itself.

Through the repeated abuse of its authority over the past 50 years, the Court has steadily siphoned political power away from the people. People will say "checks and balances But I say there is NO check on the supreme court. Congress's main checks on the judiciary include the power to amend the Constitution, pass new laws, approve the president's appointment of judges, control the number of justices on the Supreme Court, and impeach judges guilty of treason, bribery, or high crimes and misdemeanors. But the judicial branch can declare those laws unconstitutional. The Senate confirms the President's nominations for judicial positions (even not in good faith which has been the precedent for decades), and if the Senate is the same party as the president, I don't see the Senate going against their judges. Even if they aren't, the divided, bickering, childish congress would not get enough votes to do anything about the judges anyway.

The president checks the power of the courts by appointing new judges. But that's what caused this whole mess to begin with. There is no check on the SCOTUS. Which makes it the most powerful and the most dangerous branch of government. The question of whether the current Supreme Court is "legitimate" may sound absurd at first. After all, each of the nine justices on the Court was nominated by a duly elected president and duly confirmed by the Senate. Court's conservative 5-4 decisions systematically favor powerful interests that are not the people. The Court has been unfairly stacked by Senate majority leader Mitch McConnell, in a highly irregular fashion and with the support of a right-wing cabal financed by rivers of dark money, and by President Trump (making the judges nothing more than political appointees).

The first is the gradual waning of the Court's legitimacy as neutral. The second worrisome development is what Yale law professor Jack Balkin has called "constitutional rot": the erosion of "small-c" constitutional rules that aren't in the constitutional text but are nonetheless generally observed as conventions to make the institutional system work. Constitutional rot occurs when the president tweets that he cannot get a fair ruling from a "Mexican judge" or "Obama judges." It occurs when U.S. senators"threaten the Court with retaliation unless it makes the "right" decision in a case.

For example, in 2013, then-Senate majority leader Harry Reid broke the filibuster rule for judicial appointments with the explicit purpose of stacking the D.C. Circuit Court of Appeals (political appointees). Senator McConnell in turn refused to consider President Obama's nomination of Judge Merrick Garland to the Court. Then came Kavanaugh. Everyone acknowledges the erosion of once-conventional rules, and the cost to the Court's legitimacy as an institution.

Reading Article III of the Constitution gives one a sense of just how limited of an institution the federal judiciary is supposed to be. Our founding document provides for a Supreme Court with original jurisdiction over cases that involve foreign ambassadors and disputes among states. That's it.

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Franz has been studying political science for almost 30 years and is very passionate about his nation. He bends no knee to party or personality (which means he infuriates both sides of the aisle). He is blunt, to the point, and will call out (more...)

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