Rose: When the house of justice is unjust
Political pamphlets are like Sunday columns in that citing the sources of your ideas has always been optional. The only obligation is to swipe from the best and then do something useful with what you pilfered. This is what Alexander Hamilton did in Federalist Paper #78 when he borrowed from the great Enlightenment philosopher of democracy, Baron Montesquieu. Our concept of separation of powers into executive, legislative, and judicial, comes from the French nobleman.
He also observed that the judiciary was destined to be the weakest branch. Hamilton agreed, since the courts have “no influence over either the purse or the sword.” But today’s Supreme Court greatly determines how we live, and even if we live, by ruling on lawsuits concerning health care, abortion, voting rights, and human rights.
The sharpest tool of the Court’s influence is “judicial review,” which is the power to declare a law unconstitutional. The Constitution itself does not grant this power. It was first asserted by Chief Justice John Marshall in a case about political appointments in 1803.
The acceptance of the Court’s power to nullify contested laws through judicial review is very much like the acceptance of the value of gold. Gold has some utility in jewelry, dentistry, and electronics, but other metals can usually be substituted. It is worth a staggering $1800 an ounce only because buyers and sellers around the world have agreed, for the moment, that it is. Judicial review rests on the nation continuing to agree that Marshall did the right thing in grabbing this power.
States could decide that honoring this claim of power was a mistake and the Court should not decide constitutionality. If the Court then tried to strike down a state law as unconstitutional, that state could retain the law on the grounds that the Court had no right to make that determination. That would not be possible if the state was seriously out of sync with the rest of the country. When the Court ruled that schools must be desegregated in 1954 because an 1879 Kansas law permitting school segregation was unconstitutional, Eisenhower had sufficient support in the country to put the Arkansas National Guard under Federal control to enforce the Court’s decision.
The Court has lost much prestige and respect in recent years because of the perception that justices do not decide with fairness and impartiality, but simply reflect the politics of the president who appointed them as they serve for life. Justice Sonia Sotomayor made this point in reference to an anticipated decision weakening abortion rights when she asked, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”
The irrational way in which Court justices are appointed reinforces skepticism about its commitment to impartial justice. The last three justices (Gorsuch, Kavanaugh, and Barrett) were all nominated by a president who failed to win half of the popular vote in his own election. All were confirmed by a block of Senators from states which together represent less than half of the nation’s voters.
Practically speaking, candidates for today’s Court can only be confirmed if the president and Senate are of the same party. This can result in breathtaking hypocrisy. Mitch McConnell, then Senate Majority Leader, refused to consider President Obama’s nomination of Merrick Garland in March of 2016 saying it occurred too close to the next presidential election. He then pushed through the nomination of Amy Coney Barrett just days before the 2020 election removed President Trump from office.
The charge that Supreme Court justices are just politicians with legal experience has been there from almost the beginning. In 1804, Samuel Chase was impeached after serving eight years on the Court. The case boiled down to Chase being a Federalist (these later became the Republicans) and a large majority of the newly elected Senate impeaching him being Jeffersonian Democratic-Republicans (these later became the Democrats).
The Constitution mandates little about the Court’s structure or operation. Many reforms have been proposed with some having more merit than others. Franklin Roosevelt tried to pack the court with additional progressive justices who would support his New Deal legislation. That offended the nation and did not succeed.
More reasonable ideas in circulation today include minimizing politics by choosing Court justices through a lottery from the Court of Appeals, placing term limits on each seat, requiring a supermajority of seven of the nine justices to overturn state laws, or even creating a new Supreme Constitutional Court chosen apolitically that would have the sole power of judicial review.
Such reforms face a huge hurdle. Since the Republican party now has absolute control of the Supreme Court, it can be expected to oppose all reform which might jeopardize that control. The most obvious method of blocking any reform, regardless of its merit, would be to declare it unconstitutional. For now, constitutionality is whatever the Court says it is.
The only way to compel change which the current Court could not kill through judicial review is through constitutional amendment. This is notoriously difficult to achieve, having happened only 27 times in 235 years. But if a nation of 330 million people decides that the new definition of tyranny is having their lives run by nine essentially political actors with jobs-for-life who were chosen by an unsupportable and inherently unjust process, what seems unlikely today might become plausible tomorrow.
Dr. Richard Rose is the program director for instructional design and technology at West Texas A&M University. The comments here represent his own opinions and not those of WTAMU.
This article originally appeared on Amarillo Globe-News: Richard Rose when the house of justice is unjust
