One of the most telling ironies in the contempt the current United States Supreme Court has for “implied rights” (which, in accordance with the Ninth Amendment, are rights not expressly stated in the Constitution’s text, but nonetheless evident in its overall intent) is that the court’s entire power to review and destroy these rights is actually based upon the implied right of “judicial review” it took for itself in the 1803 case of Marbury v. Madison.
Another telling irony is that, in a legal system allegedly based upon evidence, many of the so-called “conservative” justices, in proclaiming that their “opinions” are grounded in law — not politics and/or their own personal beliefs, bigotry, biases, and/or allegiance to their rich patrons — are basically saying to the American public, “Who do you believe, me or your own eyes?”
If the Supreme Court is grounded in law, and not a political body, then why should it matter who serves upon it? Yet Mitch McConnell and his cohorts went through remarkable contortions by proclaiming it was an affront to fairness to advance a Supreme Court nominee months before a presidential election, but then had no compunction about later advancing another such nominee just days before another presidential election.
Especially disconcerting is the ease with which access to the Supreme Court has been gained by a few wealthy and powerful individuals and organizations, some of whom exist for the purpose of grooming and promoting prospective justices. After all, why should they make expensive donations to dozens, perhaps hundreds, of politicians who have to repeatedly run for elected office, when it only takes a few “justices,” who serve for life, to do their bidding. And with involuntary removal only possible through impeachment (an impossibility in today’s political climate) quixotically asking the nation to trust the personal “integrity” of these “justices,” who hold the rights and futures of millions in their hands, is the epitome of delusion.
These realities have inspired calls to reform the Supreme Court, with some proposals being term limits, adding additional members, and/or legally mandating a code of ethics that has real consequences for violations.
But there is another solution. Since the Supreme Court can use its implied right of judicial review to scrutinize the other two branches of government, then why shouldn’t this court be subjected to its own judicial review? Through this proposal, all Supreme Court decisions would be required to be judicially reviewed and voted upon by every federal district and appeals court judge in the United States. Voting would be conducted on a graduated system, contingent upon how the justices originally voted. A 5-4 Supreme Court decision would be nullified if 51% of the federal judges voted to overturn it; a 6-3 decision would require a minimum of 61% to overturn; a 7-2 decision, a minimum of 71%; an 8-1 decision, a minimum of 81%; and a 9-0 decision, a minimum of 91%.
This review would also examine if justices should have recused themselves from a particular case, if they had any financial interests in its outcome, and/or if a ruling is sufficiently supported by legal precedent, and not, as we are increasingly seeing today, simply personal opinions and biases wrapped in specious contortions that feign to be law.
This solution would also not upset the Constitution’s “check-and-balance” system since it is entirely contained within the judicial branch itself. In addition, it would provide similar oversight that is currently implemented in the legislative and executive branches, where the president can veto an act of Congress, and Congress can vote to override this veto.
In other words, if the Supreme Court is consistently subjecting others to submit to its implied right of judicial review, why shouldn’t its decisions also be subjected to this very same right?
— David R. Hoffman, Retired Civil Rights and Constitutional Law Attorney.
This article originally appeared on The Holland Sentinel: My Take: Why is the ultimate review body not subject to review?