Ernest Partridge, Co-Editor
The Crisis Papers.
July 10, 2007
Is there no limit to the power of the Supreme Court to enact law from
the bench? Does the Constitution simply mean what the Supreme
Court says it means?
Consider an extreme and unlikely example, but nonetheless illustrative:
Suppose the Supremes were to rule (five to four, of course), that “The
United States is a Christian nation,” and that henceforth, only
confessing Christians could hold public office. Such a ruling would, of
course, directly contradict Article Six and the First Amendment to the
Constitution. But such considerations have not constrained this Supreme
Court or its predecessor. The Constitution also stipulates that the
states are to determine the electors in a presidential election.
(Article 2, Section 1) In Bush v. Gore, the Supremes ignored that
when they brushed aside the Florida Supreme Court’s ruling that a
statewide recount of the vote must continue. The same court in the same
decision, set aside the rule of stare decisis (precedent) when it
wrote that “Our consideration is limited to the present circumstances.”
The Roberts Court has found no occasion to restore habeas corpus
or to reaffirm the Fourth Amendment prohibition of search and seizure,
both of which are required by the Constitution, and both of which are
openly violated by the Military Commission Act and by Bush’s admitted
defiance of FISA. And just last month, in Hein v. Freedom from
Religion Foundation, the Roberts Court moved half the distance
toward an establishment of religion, when it allowed federal tax
revenues to be distributed to religious agencies selected by the Bush’s
Suppose further that in 2008 a Democratic President and an
overwhelmingly Democratic Congress is elected. The Congress then
proceeds to enact, and the President to sign, legislation depriving
corporations of “personhood” status, instituting single-payer medical
coverage, reforming campaign finance, etc. – in short, repealing the
abuses of the Bush regime and the GOP Congress and instituting
progressive reforms. And then, one by one, all these are voided by the
Supreme Court, with rulings that are flimsy at best, and more often
plainly absurd, and none of them open to appeal. In short: a
nullification by one branch of government of the remaining two branches.
The Constitution of the United States provides checks and balances, to
prevent unwarranted exercise of power by branches of the federal
government. The Congress is restrained by the President’s veto power,
and the President is kept in check by the Congressional option of
impeachment and removal from office. Both the executive and the
legislative branches are constrained by Supreme Court’s “judicial
review” of enacted laws and executive orders. (“Judicial review,”
however, is not specified in the Constitution. It was established in
1803 in the landmark case,
Marbury v. Madison).
While specifying “checks and balances” against the President and the
Congress, the framers of the Constitution failed to likewise constrain
the powers of the Supreme Court, other than to allow impeachment if the
judges failed to “hold their offices during good behavior,” a vexing and
vague condition, to say the least. (Article 3, Section 1). All federal
officers take an oath to “support the Constitution” (Article 6). But
that requirement raises a troubling paradox: How is the Court, or a
Justice of the Court, or a ruling of the Court, to be judged to violate
the Constitution, when the Court itself is the final interpreter of the
Apparently the framers couldn’t imagine a time when the Supreme Court
itself might become an outlaw, and thus they provided us with no remedy.
Such a time is upon us now, soon to be followed by a desperate search
for a remedy.
Facing judiciary tyranny, what is the next President, the Congress, and
the vast majority of the voters that elected them, to do?
Testifying under oath before the Senate Judiciary Committee,
Roberts and Alito both promised to decide cases as “umpires,”
without “agendas” or “any preferred outcome in any particular case.”
And they said they would be guided by precedent – stare decisis.
They lied, of course, as is evident in their recent decisions.
Unfortunately, since their rulings are open to endless interpretation,
charges of perjury will likely lead nowhere.
In view of their few rulings to date (and I fear, far worse to come), it
appears that the five controlling justices (Roberts, Alito, Kennedy,
Scalia and Thomas) do not see themselves as the guardians of established
law and the Constitution. They are activists, championing the agenda of
the mega-corporations and the religious right, at the expense of the
rights of minorities, the poor, and ordinary individual citizens. They
are, in short, the judicial exemplars of Bush/Cheney Inc.
And nothing, it seems, can stop them. Least of all the Democrats in the
Congress as now constituted, who, after all, confirmed the nominations
Roberts and Alito.
Are there no remedies?
To say that there are none, is to surrender before the struggle even
begins. As Abraham Lincoln reportedly said, “the Constitution is not a
suicide pact.” So if the framers neglected to provide an easy solution
to judicial tyranny, they surely did not intend to allow it by default.
It is our task to find a remedy, otherwise we will meekly submit to
repression. Here are some suggestions.
Impeachment due to perjury. Clarence Thomas told the Judiciary
Committee that he never gave an idle thought to Rowe v. Wade. He
also testified that he did not sexually harass Anita Hill. Might there
not still be eyewitness, written, or other testimony and evidence
proving that Thomas committed perjury? This approach is not very
promising. The evidence is cold, and perhaps Thomas is protected by the
statute of limitations. (Lawyers, please help me with this). The Roberts
and Alito lies under oath are, as noted above, “open to interpretation,”
and thus can not overcome the “beyond reasonable doubt” standard.
The “Good Behavior” condition. It is likely that a $50 million
Ken Starr type investigation would uncover some dark secrets in the
lives of "the regressive five” on the court. But the country can ill
afford still more politics of personal destruction. There are two edges
to this sword, which can cut away any and all of the comity that is
pre-requisite to productive political activity. Furthermore, the “good
behavior” condition likely applies to conduct while on the bench, and
there is no evidence that any of the Five have “behaved badly” in the
ordinary sense. They have “behaved badly” in their recent rulings, but
this is a judicial rather than a moral judgment, and surely not what the
framers had in mind by their “good behavior” condition.
A Constitutional Amendment. One might imagine a constitutional
amendment allowing the removal a Supreme Court justice upon two-thirds
vote in both Houses of Congress. Or it might abolish life-time
appointments and require periodic reconfirmation. (The specifics are not
important, just the principle that the power of the Court might be
curtailed by Constitutional Amendment). This might be an ideal long-term
solution, made more feasible by the abuses that we have and will see in
this Court. But it will not suffice for the short- or mid-term, when The
Roberts Five may do the most damage.
Nullification of the Bush Administration Appointments. This,
admittedly, is a long shot – bordering on fantasy. But who knows? It
just might work.
Suppose that, at long last, we have proof-positive that the 2000 and
2004 elections were stolen. By this I mean indictments, jury trials,
guilty verdicts and convictions, resulting from confessions, and
“smoking gun” physical and documentary evidence (e.g., internal memos
from Diebold and expert examination, at last, of the "proprietary"
Proving a stolen presidential election is less difficult than one might
suppose. Provide such proof in one large state (say Florida in
2000 and Ohio in 2004), and we have proof that the election was obtained
through criminal activity. The capper would be proof that this felonious
activity extended all the way up to Karl Rove and the RNC, and that both
Bush and Cheney were aware of it. Ideal, but perhaps not necessary.
With all this in the public and legal record, might not a post-2008
Congress rule that all appointments during the illegitimate Bush/Cheney
administration were null and void? It would follow that judges appointed
by Bush and confirmed by Congress would, at the very least, be required
to submit to new hearings before the Judiciary Committees and subject to
re-confirmation. Roberts and Alito would then be vulnerable. This
strategy has the added advantage of clearing out the Bush-troglodytes
from the Federal appellate courts.
Court Packing. Nowhere in the Constitution is it specified that
the Supreme Court must contain nine members. With the ratification of
the Constitution, there were five. There is thus no constitutional
prohibition to adding two more justices, thus putting The Regressive
Five in the minority. Franklin Roosevelt tried to increase the number of
justices to thirteen and was rebuffed by the Congress, and since then
political scientists and legal scholars have, by and large, held FDR’s
ploy in low regard. But if the Roberts Court proves to be as
contemptuous of the President, the Congress, and legal precedent as it
appears they might by their current behavior, then desperate measures
are in order. And court packing is entirely permissible under the law.
I am not a legal or constitutional scholar. Perhaps I have overlooked a
solution that is more promising than any of the above. I devoutly hope
so. If there any such solutions, please let me know, and I will share it
with all who regularly read The Crisis Papers and other sites that post
There must be an escape from the judicial tyranny that Bush, Cheney and
the GOP has foisted upon all of us.
It is our task, and that of our representatives, to find it.
Copyright 2007 by Ernest Partridge
Ernest Partridge's Internet Publications
Conscience of a Progressive:
Partridge's Scholarly Publications. (The Online Gadfly)
Dr. Ernest Partridge is a consultant, writer and lecturer in the field
of Environmental Ethics and Public Policy. He has taught Philosophy at
the University of California, and in Utah, Colorado and Wisconsin. He
publishes the website, "The Online
Gadfly" and co-edits the progressive website,
"The Crisis Papers".
His e-mail is: firstname.lastname@example.org .