Essay 26 – The Judiciary Revisited

Part 2: Fixing The Problem

Essay 26 – The Judiciary Revisited

“At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience however soon showed in what way they were to become the most dangerous: that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions nevertheless become law by precedent, sapping by little and little the foundations of the Constitution, and working it’s change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming it’s substance.”
– Thomas Jefferson, letter to Monsieur A. Coray, October 31, 1823

The Judicial Branch has assumed a role of supremacy that was never intended and is extremely dangerous to our self-governing system.

As discussed in the first essay on the Judicial Branch in Part 1, the Judiciary is now operating essentially without the checks and balances created to help keep it from delving into the political realm.

Because we have changed the way our President and our Senate is elected, both moving more to the pure democracy model and all of the negative consequences that come along with that, the result is that the selection and confirmation is inherently more political. We end up with obvious political appointees to the Judiciary. This is clearly evident in that most people who pay any attention to the Supreme Court can identify which ones are the liberal justices and which ones are the conservative justices….and which one is usually the “swing vote”.

So now, while our system was specifically created to have three equal branches, each kept in check by the others, so that powers are separated in a way where so few people could not possibly have so much power, we have a situation where a presidential election basically came down to the issue of who would appoint one vacant Supreme Court justice position because many people believe that one person could determine the future of our Republic.

The justices now operate in an unimpeded and unaccountable way. Worse yet, they are increasingly political in their decisions and interpretations. This is a recipe for disaster.

Things are getting so bad with the divisiveness that without a serious change of course, I predict things will progress such that within the next decade, the Supreme Court may very well be so stacked one way or the other that we’ll be operating in full judicial tyranny. This should concern everyone.

Picture this scenario that is currently playing out:

1. During the Obama presidency, Republicans were successful in blocking many of President Obama’s nominees to the lower federal courts by use of the filibuster rule in the Senate.

2. The Senate rules required at least 60 votes in order to proceed with a vote. So to get around that, the Democrats (who controlled the Senate at the time) decided to remove the filibuster option for lower court nominees (so only a simple majority of 51 votes were needed). At that time, they only did it for the lower court nominees, leaving the filibuster (60 vote requirement) in place for the sacred Supreme Court nomination process. The Republicans were furious that the Democrats would change this long-standing Senate rule.

3. Shortly there after, the Republicans gained control of the Senate. Did they change the filibuster rule back? No.

4. In 2015, the Supreme Court was basically split with 4 “conservative” justices, 4 “liberal” justices and 1 swing vote. Many major decisions were decided 5-4, making each of these issues very controversial and contentious.

5. In early 2016, a conservative justice of the Supreme Court died, leaving a vacancy to be filled. Democrats believed this was their chance to substantially change the balance of the Supreme Court to their favor. President Obama nominated a replacement and the Republicans, in charge of the Senate, refused to consider the nomination, claiming it wouldn’t be prudent in an election year. They succeeded in blocking the appointment of a replacement by President Obama.

6. The Republicans won the election in 2016 and proceeded to nominate a conservative justice. However, because the filibuster rule was left in place for Supreme Court justices, the Democrats could simply filibuster the nomination and require a “consensus” nominee that could get 60 votes to proceed.

7. The Republicans were in no mood to be blocked and decided to use the “nuclear option”…they removed the filibuster rule for Supreme Court justices so that they only needed 51 votes to approve the nominee. Remember that the Republicans were furious when the Democrats did this for lower court nominees, but instead of putting it back the way it was, they went a step farther! Of course, the Democrats were furious that the Republicans would do this, claiming they “stole” a Supreme Court justice for the conservative side.

It is these types of actions that have created a highly politicized judiciary. And it’s going to get worse. Every time one side crosses a political line to achieve their partisan goal, the other side takes it another step as soon as they gain control.

So what’s next?

I predict that if/when the Democrats take back control of Congress and the Presidency, they will proceed to “right the wrong” that they believe was done. Since it’s totally up to Congress to determine how many Supreme Court justices there are, I believe they will adjust the number in order to achieve a solid liberal majority Supreme Court.

Although the number of Supreme Court justices has not changed since 1869, it’s not for lack of wanting to. President Franklin D. Roosevelt attempted to do this in order to avoid getting his agenda blocked by the Supreme Court. It was averted at that time, but only because the Supreme Court started deciding cases in his favor as a response to his threat to “stack the court”.

I believe that the Democrats will feel fully justified in proceeding with that strategy under our current contentious and partisan environment, especially after they believe the Republicans “stole” a seat that rightfully belonged to them. And since all of the rules that would normally prevent such a thing have been removed, there is nothing stopping them.

If that happens, I’m afraid that it is “game over” for our Constitutional system. That would put the final nail in the coffin.

How to fix it…

The following steps are some of the things that need to be taken in order to get the Judicial Branch back under control:

1. Educate the people. As I previously stated, educating the people is the root of everything, but I will keep repeating it because it cannot be emphasized enough. In order for the Judicial Branch to operate as it should, the people first have to know the proper role and the reasons for it.

2. De-politicize the Judiciary as much as possible. In order to restore trust in the Judiciary, we need to remove politics from it, at least in every way possible. This means we need to take measures to restore the proper balance between the branches, which would include returning the Senate to its proper role and purpose. You won’t be surprised to learn that repealing the 17th Amendment would be first and foremost in that process. Once the Senate is no longer hyper-politicized by a popular vote of the people, it can return to considering and confirming nominees to the Judiciary in a much less politicized atmosphere.

3. Fix the accountability issues. The Justices in the Judiciary are currently operating with impunity. They are given lifetime appointments during good behavior. This is necessary in order to attract the best candidates, and also to keep them as non-political possible. The check in the system for abuse of these immense powers and trust given to them is that they can be impeached by the Legislative Branch. However, this process has become near impossible in our current divisive and partisan environment and, therefore, this protection in no longer effective.

If we take all of the actions needed in order to fix our overall system, we may return to an environment that would be more conducive for that check to be effective. However, a Justice of the Supreme Court has never been removed from office by impeachment. There are also times that the Supreme Court simply makes a bad decision…one that the other branches do not agree with, and the majority of states do not agree with and the majority of people do not agree with. In such circumstances, there should be a mechanism to override the Supreme Court decision. It should not be easy to do and must pass a very high bar, such as if 3/4 of the States pass a resolution to overturn it. The point is, we can’t have just nine people acting as final arbiters of such high impacting decisions that affect 325 million citizens without any accountability. The Justices are still human and, therefore, encumbered with human nature…the good and the bad.

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 27 – The Administrative State

To view the previous essay in the series, click this link: Essay 25 – The Executive Revisited

To view the next essay in the series, click this link: Essay 27 – The Administrative State