Part 1: What’s So Great About Our Constitution, Anyway?
Essay 17 – The Judiciary
“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.”
– Article III, Section I, U.S. Constitution
The role of the Judicial Branch is to resolve disputes such as those from cases involving the Constitution, the laws of the United States, treaties with foreign entities, ambassadors, disputes between states, or between citizens of different states and other issues that may arise that are not fully within the jurisdiction of an individual state.
When conceiving the idea of the federal Judicial Branch, the founders intended it to be a completely “legal” branch, unencumbered by “politics”.
One way that they thought to ensure the independence of the Judicial Branch from politics was in determining their tenure. They believed that if they put a limit on the term of service, it would create the following problems:
1. Judges may be vulnerable to corruption in order to set themselves up for future endeavors.
2. If their terms could be renewed, who would be the renewal authority? If it was the President or Congress, then the judges would be beholden to the one or the other for their future.
3. If it was a limited term, many would choose not to sacrifice their private career potential for a temporary stint on the court. This would further limit the already very limited best qualified people for the positions.
In the end, they decided the best tenure would be unlimited “during good behavior”. In other words, as long as they did not do anything that might get them impeached, it was a lifetime tenure, or as long as they wanted it. It was believed that this was the best way to keep them independent and least likely to succumb to politics or corruption.
Another issue that had to be determined was the method of selection of the members of the Judicial Branch.
It was understood that the qualifications for these positions were extremely high, requiring people with vast knowledge of the law and extensive experience in applying it fairly and honestly. Very few people would ever meet these qualifications and it would take great consideration and deliberation to ensure that the prospective justices would meet them.
Since they needed to be independent and free from politics, it would not be wise to elect them directly by the people. In fact, the selection of justices for the Judiciary Branch is the least democratic of any of the branches.
The power of nominating and appointing the justices was given to the President, but only with advice and consent of the Senate.
It’s a three-step process:
1. The President, on his own, chooses who to nominate for a vacant position.
2. That nomination then goes to the Senate for consideration. The Senate then either confirms or not confirms that nominee.
3. If the Senate confirms, then the President can appoint the nominee or he can choose not to for whatever reason and decide to nominate a different person.
If the Senate does not confirm the nominee, then the President can choose to nominate a different person and go through the process again until someone is confirmed by the Senate and is appointed by the President.
The Constitution leaves it up to Congress to determine the exact structure of the Supreme Court and the Inferior Courts, including the number of Supreme Court justices and number of Inferior Courts.
There are currently nine justices on the Supreme Court, but that wasn’t always the case and, again, that is not specified in the Constitution. Congress can, and has, adjusted that number. They did so a number of times during the first century under the Constitution. The original number was six, then briefly five, then seven, then nine, then ten, then back to seven, and in 1869 back to nine, where it has stayed ever since.
As you can imagine, most of the changes were made for political reasons…if Congress didn’t want one or another of the Presidents to be able to make an appointment, they would reduce the number, or if they wanted to allow him another appointment, they would raise it.
President Franklin D. Roosevelt (FDR) attempted to get Congress to raise the number in the late 1930’s because the Supreme Court was knocking down many of his New Deal proposals as being unconstitutional. He wanted to appoint additional justices in order to stack the court in his favor. With that threat hanging over them, the courts started to decide cases in FDR’s favor and the change never occurred.
However, there is absolutely nothing that prevents Congress from changing that number at any time.
Where we’ve gone wrong…
In spite of the protections that the Founders attempted to put in place against it, it is clear that the Judicial Branch has been politicized and is now out of control, deciding cases on dubious reasoning and wild interpretations of the Constitution, and essentially creating legislation from the bench.
The results of this were seen in the 2016 Presidential election. Many voters on both sides did not want to vote for either candidate, but decided how to vote based on the one Supreme Court nomination that was hanging out there. People knew the political make-up of the court and knew that this one justice could swing it one way or the other.
This is so far away from what the system is supposed to be.
People actually believe that the appointment of one person could determine the fate of our entire Republic. Think about that for a minute. How can one person have such immense power in our system when the Founders were so intently careful with checks & balances, and the separation of powers, and specifying exactly what powers the government would have?
The fact that one person was so important, has so much power, goes against everything that our system of self-government was built for. This should be a sure warning sign to everyone that something has gone terribly wrong.
So what happened?
A number of things. First, I’ll mention the 17th Amendment once again…are you starting to see a pattern?
The 17th Amendment altered the make-up of the Senate…it changed it from a group of very experienced, well-qualified statesman, selected for their knowledge and expertise on the issues (and especially in their particular State’s issues), to that of a group of people who only cater to the changing whims of the voters who directly elect them through a popular vote.
Why is that important in regards to the Judicial Branch? Because, it’s the Senate who provides the advice and consent for the people nominated to the Judicial Branch positions. So when the Senate is made wholly political by their method of election and they are then mainly concerned about their own re-election, their motives change in how they provide the advice and consent…that process also becomes more political and, therefore, we end up with more political appointees as justices. And remember, we’ve already made the President more political by altering the Electoral College and moving that process of election closer to a purely democratic process. So his appointments will also be more political.
Second, while the Founders were very good in considering human nature in the way they devised the overall system, I believe they faltered a bit in that area where the Judicial Branch is concerned.
They attempted to make the justices independent by such things as providing them a lifetime tenure, and a salary that could not be diminished, but they seemed to have failed to recognize that human nature provides people with other motivations. Power, fame, popularity, ego, favors for family and friends, and other motivators can cause any person to act inappropriately. And no person, ever, is unbiased. That is human nature.
These reasons and others can explain why the Supreme Court (and the Inferior Courts) have made so many bad judgments over the years. I don’t believe that enough checks and balances were provided for these problems. The one way they did provide for accountability was that the justices are eligible for impeachment for bad behavior. This can include obvious decisions made for politics rather than for law. However, in the entire history of the Judicial Branch, not one Supreme Court justice has ever been removed from office. Why? Mainly politics. Because the Legislature is divided politically, there has never been a large enough majority to enable impeachment and removal, no matter how egregious the actions are of a justice. Without the political will for removal, the threat of it is of no use as a check on the Judicial Branch.
The result of this is that the Judicial Branch can pretty much rule unimpeded.
Nine people make very controversial decisions that affect us all and they are usually made on a very obviously political basis (5-4 decisions along political lines), and then people lose faith in the system. They lose faith that we are a nation of laws. Because there seems to be no recourse to change an obviously wrong judgment made for political purposes. So with every court decision we see an outcry from one side or the other, and animosity grows, and division and strife festers.
About this series:
The People Are Sovereign! is a series of 30 essays that will be posted on a daily basis. The series will continue tomorrow with Essay 18 – Checks and Balances
To view the previous essay in the series, click this link: Essay 16- The Electoral College
To view the next essay in the series, click this link: Essay 18- Checks and Balances