Mr. Obama and the Supreme Court

Here is the speech I am looking forward to hearing from President Obama soon.

My fellow Americans, we have just completed an election for national legislative and executive offices, and those elected have serious and urgent business before them. But ours is a system of three distinct branches, and the third branch, the judiciary was conceived as providing balance and thoughtfulness to the actions of the other two. 

Over the course of history, there have been times this branch, and in particular the United States Supreme Court have provided this balance, but there have also been notable failures, and for several generations this un-elected branch has actually become the most radical branch and its excesses the most extreme.

I am sure within milliseconds of finishing my remarks, and even before I finish, across the electronic world wide web the word will go out: President Obama attempts to bash the Constitution. Nothing could be further from the truth.  In fact, to answer this notion, I will read the only three paragraphs of the Constitution which mention the Supreme Court, its justices and their powers. It won't take long. They are contained in the first two sections of Article III, and this is all the Constitution says, in its entirety, about the Court:

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. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority--to all Cases affecting Ambassadors, other public Minister and Consuls; to all Case of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and the Citizens of another State, between Citizens of different States, between Citizens of the same State claiming Lands under Grants of different States and between a State or the Citizens thereof, and foreign States Citizens or Subjects.

In all Cases affecting Ambassadors, other public Minister and Consuls and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. IN all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to law and Fact, with such Exceptions and under such Regulations as the Congress shall make.

That is all the Constitution says about the court and its justices and its authority.
Notice, there is only one sentence describing the justices.  It does not set a number. It says only they will serve "during good Behavior" and that nobody can cut their pay.

The court, much as some would like to deny it, is a political institution. We hope the justices form their opinions based only on the law but the cases which reach the Supreme Court often fall into gaps between what the law says explicitly and the details of a particular circumstance.

In the Dred Scott case, a man sued for his freedom from slavery.  The Supreme Court ruled that as a slave, this human being had no rights, because in the eyes of the law, he is not a human being but property and only a human being can sue in the court.  Dred Scott had not "standing" with the court, because he was nothing more than property. The Constitution did not address this principle directly. Nowhere in it is there mention of the word "slave" although it did mention "free persons" and "all other persons."  So the Supreme Court had to draw its own conclusions and these conclusions were based on the sensibilities and experience and philosophy of the justices in nineteenth century America.

In the Citizens United case, the Supreme Court ruled that a corporation had the rights of a human being, the right to free speech. So in the nineteenth century the court ruled  a human being was not a human being because he was property and in the 21st century, the Court ruled a property, that is a corporation, had the rights of a human being. 

The Supreme Court has, occasionally, filled in the gaps between stated law and principle in the direction of progress and moving the nation toward the right side of history: In Brown vs the Board of Education, the Court rejected the idea that schoolchildren in  public schools could be separated by race by state law. It said "separate but equal" was an oxymoron--separate meant inherently unequal.  But this is a case in point--the Supreme Court decides cases where the law ends and philosophy and good sense begins, and that is where the personal history of the justices prevail.  We cannot allow nine entrenched men and women to block the progress of 300 million.

These cases are merely examples of a larger issue:  The Court has evolved by tradition to be nine justices, appointed for life, each appointed by whatever President happens to be in office when one justice departs. This haphazard system has resulted in justices "gaming" the system, hanging on until a President who is not to their political liking leaves office. It has meant that when the country has moved to new understandings and beliefs, as it has in the case of marriage equality, the Court stands as an obstacle to the flow of freedom. It has resulted in absurd rulings, like the one which embraced the idea, "Corporations are people."

I am not the first President to see freedom and prosperity thwarted by a Court which has gripped the choke collar on progress to the point of  asphyxiation.  And I am loathe to change now what we may regret changing later. But I do think it is vital to be on the right side of history and the Supreme Court needs to change, as the executive branch and the legislative branches have changed with the demands of the times.

The Constitution is not a holy book inscribed in stone by God's hand, but a living document, a brilliant and enduring document, and it needs to be interpreted by a living  and responsive court.

I propose Congress enact legislation--no Constitutional amendment is necessary--which would require the President to appoint one Supreme Court justice during each year of his Presidency. The sitting justices should hear cases, argue their merits and render opinions, but only the nine most recently appointed can vote on the verdicts.

In doing this, we will acknowledge what has been evident for generations, that much as they strive to be objective, justices are people and will be influenced by their experience and by their own personal values.  As the nation changes, we cannot allow a static court to thwart its progress. 

I have no illusion the current Congress will enact this legislation. The House of Representatives is in the grip of a fundamentalist faction of the Right Wing. But in two years, all the seats in the House will be up for renewal. It is with 2014 in mind I make this proposal tonight. During by year elections, with no President on the ballot, voter turn out tends to be low. If we can focus now on this upcoming election, I hope we can see a voter turn out which duplicates or exceeds the participation we have just seen in 2012.

Thank you and good night.