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  • Writer's pictureDoug Weiss

The Court

The Court

With good reason, the decisions, conduct and term of the Supreme Court have come into sharp focus for most Americans over the course of the past year. Some, including justices of the court itself believe the court has overstepped its charter and become an instrument of policy rather than an interpreter of the law. Moreover, the character of those who serve as justices for life has been called into question by conduct which, if applied to justices in lower courts, members of Congress or cabinet level executives would be considered conflicts of interest.

As with most issues contested in the court of public opinion and the media these days very little is grounded in any framework based on the one seminal and guiding document, the Constitution. Except among law students and faculty perhaps there is little significant conversation about the aforementioned or other issues bearing on the legitimacy of the court that make reference to the cardinal authority governing the judiciary. With this in mind, indulge me in setting out the relevant language.

Article III provides the entirety of Constitutional direction on the formation and role of the Supreme Court. Section I says “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office”.

A few observations are in order. Note that the composition of the court, and the term of its justices (which is subject solely to their good Behavior) are not further defined but rather are subject to such determination as may be made by Congress insofar as the court is not and was never intended to hold the power to create laws or determine policy—these being the exclusive domain of the legislative and executive branches.

Section II, defines Federal judicial power: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State,—between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed”.

Of particular note, section II makes clear that the court may not hear cases except those in Law and Equity, those which pass the legal test of standing, mootness and ripeness. This is a pivotal definition in so far as it bears on recent decisions. It was not until the 1789 Judiciary Act that the initial composition of the court was set at five Justices and –as provided for in section I, a Chief Justice. Subsequently, in 1801 and again in 1866 the number of justices were changed by act of Congress with a final change occurring in 1869 at which time it was set at a total of nine justices including the Chief Justice. Since that time there has been a single, though unsuccessful attempt-- in 1937-- to alter the size of the court.

The devil, it is said, is in the details. I have no quarrel with the manner in which the court is conceived, nor of its role as set forth in the Constitution, rather my distress lies with the manner in which the process of empaneling what should be an unbiased authority has been co-opted by partisanship and ideological cant. In a more perfect world as imagined by the framers of the Constitution, candidates for the highest court would not be chosen for their ideological stance or party affiliation regardless of who sat in executive office. That is the entire point of requiring that nominees to this lifetime seat be determined by the executive branch but approved by the Senate.

We might suppose that candidates would be selected precisely for their impartiality but as we have seen that has seldom been the case. Never more so than in the last few decades where prospective jurists whose records reflect unquestionable ideological orientation are approved by a Congress that shares the same bias. No check or balance is sufficient to overcome this and in fact, it is not hidden. The senate hearings on Supreme Court appointees has taken on the character of a kabuki drama. Everyone knows the outcome even before the play begins.

Nor did our forefathers conceive of such abuse of their intent as a partisan Senate’s refusal to hold hearings for approval of a candidate on the pretext that the seated President’s term was in its remaining months, which precedent was reversed only a few years later in order to permit an eleventh-hour appointment of another President to proceed. All of this was done in plain sight of the American public with the certain knowledge that it would have no consequence.

In the genteel language the court employs when addressing itself, the minority justices in recent court decisions have raised the question of judicial overreach and offered opinions on the merits of the cases heard, citing issues of standing, ripeness and mootness. That was especially pertinent in the case regarding the rights of business owners to deny service to particular classes of individuals, which saw the court resort to fraught hypotheses in order to avoid dismissing the case out of hand.

In the instance of the court's ruling on student loan forgiveness the court accepted as plaintiff a state acting on behalf of a state created agency that did not issue loans, and therefore, should not have had standing. However, no court has the power to review or revise either of these decisions; the Supreme Court answers to no one. The Chief Justice commenting on the tenor of the minority opinions in equally courtly language has suggested that reasonable minds may hold opposing views, but as he has done on earlier occasions bemoans the charge that the court is a political rather than a judicial animal. He and his fellow justices must face the reality that trust in the court as an unbiased, apolitical entity is not a given. It is not an overstatement to say that abuses of that trust have eroded public faith in the institution and that serves neither party nor our Republic.

To those who celebrate the outcomes of recent decisions be assured that the wheel may very well turn as it has done before, and come back to your dismay. To those who are enraged and distressed by what these decisions portend, you have a singular power to alter the future course with your actions at the voting booth. Congress made the court what it is today and a different Congress can alter it. None of it is sacred—not the number of justices, their term, nor the process by which they are appointed. To those who say it matters not who is in office –both parties are corrupt, I say then live without recourse, at the mercy of whatever despotism may rule.

It is in all our interests to ensure that the one and only authority whose powers can only be abrogated by Congress be apolitical, without ideological bias and held explicitly to the highest standards of conduct. As Lord Acton famously wrote “… (it) should be applied to all men, political and religious leaders included, especially since Power tends to corrupt and absolute power corrupts absolutely”

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