Daily GUIDE-ance:

Sunday, April 8, 2012

I really was planning on writing about the Supreme Court before this week happened. It was just one of those weird synergy things that this week happened to be the week that the president lashed out verbally at the Supreme Court and wound up getting smacked with a court order to publicly explain whether or not he understands remedial Constitutional principles.

I don't plan to talk a lot of current events here, but in this case, it makes sense.

The president used the term "unelected" to describe the Court and his context implied that this should diminish the authority of the court. The opposite is true.

The constitution creates a tripod government, in which each pillar held up less by its own strength and integrity, and more by being balanced and opposed against the other two pillars. Of the three branches, (Executive, Legislative and Judicial) the Judicial branch is the most reliant on the integrity of its own members for its stability. The Judicial Branch is the heaviest and most vertical of the tripod poles. That makes it the most dangerous pole to be underneath if it falls.

Of the three branches, the Judicial comes closest to being a backbone. If a professional politician is the least employable of people, a corrupt judge is possibly the most employable.

The reason the founders arranged that the courts would be unelected, was to insulate the courts from partisan pressures, to protect the objectivity and impartiality of the judges.*
Good Thinking, Founders!

If/When we get a chance to restructure the Constitution, we'd be smart to consider additional measures to armour the judges against impartial influences. Apparently, they need all the protection they can get.

This week's
Idea #1:

Currently, SC judges are appointed by the president whenever a vacancy happens to occur. This introduces an element of chance into the selection process that could be improved on.
I suggest a consitutional amendment that would create an 'on deck' pool of SC justices.

Each 4 year presidential term, the sitting president and Congress would appoint an SC Justice, even if there is no vacancy to be filled. That Justice would wait 'on deck', until a vacancy to occured. If more than one presidential terms passed with no vacancies opening up, then additional 'on deck' justices would be appointed.

The sitting president would never appoint more than one SC justice per term, unless several vacancies happened at once and the 'on deck' pool was not enough to fill them.

This would make the transition from Justice to Justice smooth and seamless; we would be less likely to see a Supreme Court understaffed. It would also put an element of distance and objectivity between the appointment/approval process, but more importantly it would create a more uniform presidential legacy of SC appointees. The current system has a small but potentially lethal leak here. Elected officials come and go, but Supreme Courts set precedents that last for decades.

The president also expressed concern about "Judicial activism". In other words, while the courts need to be protected from people like the president, everyone else needs to be protected from the courts. The president's recent statements show that there is strong bipartisan concern about this.

Idea #2

I see no reason why any court below the Supreme should have authority to overturn a State Constitution.

An Amendment to the US Constitution that protected state constitutions from lower courts would save a lot of wasted time and energy in the lower courts trying cases that will not truly be decided until they reach the SC anyway. More importantly, it would go along way to put the self back in self governance, by returning and affirming the sovereignty of the states. There's a risk of straining the SC in this but State Constitutions ought to mean something.


This is the most important of the three potential amendments that I am chewing over today. Currently there is no appeal from a SC decision. The president's concern that this unelected body might not always reflect the will of the people is not invalid. I am tempted to recommend an amendment that would allow an SC ruling to be overturned by a popular vote of the people. However, an SC ruling has binding power similar to Constitutional law. The founders were careful to protect the Constitution from dangerous, casual change.** So, instead, I suggest that SC rules should be overturned by the same procedure used to create new amendments to the US Constitution. 3/4ths of the State legislatures acting in concert could overturn any SC desision, either supporting the existing SC minority ruling, or writing a new one. This would make the Final court of appeals the people of the USA, or at least their local representatives.

*It would take a very dedicated dogmatism to interpret the president's statements as anything other than an attempt to interfere with the partiality of the court. I am forcibly reminded of the attitude demonstrated by Clinton after he was impeached by the House: the 'how-dare-you, who-do-you-think-you-are' attitude. Clinton, at least, had the restraint (there's a new phrase!) to wait until the after verdict had been rendered against before he went all hubrissy.

**Also, when there is an irregularity in a popular vote count (think Floriduh 2000) the courts must split the hairs and rule on election fraud. If a popular vote overrules the court, but the court must rule on an irregular vote, there is an infinite feedback problem.

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