Sunday, December 23, 2012

The Case For Packing the Court

Mad Dog is not a scholar of the Supreme Court, nor is he a historian of 18th century America, but he does live in the state that gave us Noah Webster, and he is a citizen, so he feels qualified to comment.

When the founding fathers were dreaming up this thing called a Republic, based on the idea of democracy, there was, no doubt, a great deal of worry the whole thing was folly and would not work. While there was an intellectual, economic elite who wore silk stockings,ruled over plantations and quietly fathered mixed race children, who could be trusted to govern, there must have been plenty of illiterate rabble who populated the streets of Boston, New York, Philadelphia, and Baltimore, whose very presence worried the landed, moneyed gentlemen.  So the founding fathers hedged their bets: They set up an electoral college to stand between the will of the hoi polloi and the Presidency; they set up a Senate, elected not directly by the people,  but by their representatives; and they set up a Supreme Court, who would serve as long as they exhibited "good conduct," which is widely taken to mean, for life.

These Supreme Court justices did not originally have as much power as they do now--the idea of a court over ruling the laws of the Congress evolved, but it was all very comforting to think there would be a check on the passions of the mob, some cool headed, rational men who would say, "NO, this is something you cannot vote on."

And there is at least one occasion when the court actually led the nation to a better place: Brown vs The Board of Education, where the court said "separate but equal schools" are inherently unequal. The court saw the truth on the ground and called a spade a spade. These segregated schools are the foundation for a segregated society, and all that had to end.

But, except for that, the Court has, over history, at least the history which is big enough and important enough that even an unschooled, unsophisticated citizen like Mad Dog can know about it, over history, the Court has actually played a damaging role in our nation's history.

The first and most notorious case, of course, was Dred Scott, where the Court said Dred Scott, a slave, had no standing before the Court because he was not a man, a human being, but property who or which belonged to another man. You cannot vote on that, the Court said. So be it.

Then, when the nation teetered on the brink of financial ruin and economic collapse, the Court said "No" to the New Deal. Franklin Roosevelt threatened to "pack" the court with justices who could see the danger, but he was rebuffed--he could not find enough support in the legislature. His threats did seem to chasten the court, which became a little less obstructive.

Now, in the space of 5 years, the Court has handed down Citizens United, and District of Columbia vs Heller, Florence vs Board of Freeholders, not to mention Bong Hits for Jesus, in which it has ruled:  1. Corporations, or rather their CEO's and board of directors are entitled to spend all the money they wish to buy elections 2. The 2nd amendment guarantees the right to own any firearm to any individual, whether or not he is a member of a well regulated militia 3. Any citizen may be strip searched by his government whenever he or she is arrested, before any charges are brought or a judge has been informed 4. Freedom of speech may be abridged in the case of students who are within sight of a school principal, whether or not the student is in schoo,l and whether or not the student is speaking out against an act which has been imposed upon the student as a political expression of the principal.

In each of these cases, the harm done the nation has been either profound or only narrowly averted by the vigorous exertions of its citizens.

Reading the Constitution, Mad Dog is stunned by how little is said about the nature and composition of the Court.  No specific number of justices has ever been mentioned and, in fact, the number has varied through our history. The nine justices we have had since the early 20th century is simply tradition, not Constitutional law.

It would not require an amendment to the Constitution for the Congress to pass a law which would allow the President to appoint a new justice for each 4 year term of his Presidency. (Or, if you really wanted to be radical, he could appoint one a year for each year of his Presidency.)  But in any case, as has been suggested by others, this would mean the court would not be locked in until justices like Scalia, Alito, Roberts and Thomas die. 

Some have proposed only the most recently appointed nine justices could vote on cases.

The argument against this is it would make the Supreme Court "political." But one can hardly argue the Court is not political now. When you can predict with near perfect accuracy how four of the justices will vote on any case, given only a paragraph's description of the case, in any case with any significant social/political impact, then you have an extremely political body.

And it is a perversion of politics and democracy to have in place the legacy of vile reactionary thought,  from discredited Presidents,  whom the country has disavowed by voting,  and who continue to poison the wellsprings of democracy with residual lifelong appointments. It is as if the fields have been sown with salt, so they may never yield life sustaining crops again.

The argument has been advanced that we would be opening ourselves to a payback, when, as we always see, the cycle returns to a more conservative President who would appoint conservative justices,  and then we would never have a Brown vs. Board of Education. But this court, like many before it, will be conservative through many Presidential cycles and with the current lifetime death grip it has, the country will be unable to move forward. This is not stability; this is stagnation verging on ossification.

Yes, the court would cycle from liberal to conservative as Presidents come and go, but it would at least cycle.

And, we would, most importantly, be admitting the obvious fact that the Supreme Court is, like the other two branches, political.  And all political bodies are expected to be responsive to the world around them, and to be aware of the needs and competing demands of the people. We have only to look at the smug countenance of Antonin Scalia, to see the outcome of our current system: Here is a man who knows nobody can wrest his power from him. He can continue to sit back and watch as the people elect a new President, as the voters elect new representatives, and whatever the President and the Congress may say or do, it is only Mr. Scalia's opinion which matters in the end. He is the umpire and despite all the replays and all the evidence he has got it wrong, it is still in power. What he rules is final.

We have more than one broken branch. We have two broken branches. It is time to set the fracture in the one branch which most people can see needs fixing.

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