Posted on 04/15/2016 1:58:41 AM PDT by Jacquerie
While our Constitution famously set up a government of divided powers, the powers within each branch are not absolute. Each is subject to various checks from the others. Congress is responsible for lawmaking, but the president has a qualified veto over congressional bills. It is not absolute, for congress may override on two-thirds majority vote. As a theoretical check on the judiciary, scotus is subject to Article III congressionally determined “exceptions . . . and regulations.”
Scotus has developed a habit of going far beyond its duty to adjudicate between parties and protect the constitutionality of law. Instead, it often vetoes laws based on mere policy disagreements. Viewed another way, scotus regularly exercises an arrogant absolute veto over legislation not granted to any branch of government at all.
If it doesn’t ‘feel right’ to you when scotus substitutes its standards of morality or shoots down a law based on the perceived impropriety of congressional or state statutes, the Framers would agree. At the 1787 Federal Convention, they specifically rejected empowering scotus to veto law based on policy disagreement.
The eighth resolution of James Madison’s Virginia Plan of government proposed a Council of Revision. Comprising the president and a few judges from the supreme court, this body was to examine congressional acts and was empowered to set them aside before they became law.
On June 4th, Elbridge Gerry questioned the propriety of involving judges in “the policy of public measures.” It just wasn’t the business of courts to be involved in judging the wisdom of proposed law. Besides, said Rufus King, “The judges will no doubt stop the operation of such laws as shall appear repugnant to the Constitution.” Looking further into the practical effect of such a council, others agreed that those entrusted with judging the constitutionality of law should not participate in making the law. Debate within the council would surely involve politics and legislative matters far outside the skill set of judges.
The Framers reasoned that unwise laws are not necessarily unconstitutional, and to the extent the judiciary is involved in lawmaking, their prestige in adjudicating the law is diminished. Let the congress and president exercise political judgment, and reserve judicial review to scotus subsequent to operation of the law. The combined executive/judicial absolute veto of Resolution Eight was refined into the qualified executive veto we know today.
To deal with the unconstitutional, de facto absolute judicial veto, one of Mark Levin’s proposed liberty amendments might provide relief. An Amendment to Establish Term Limits for Supreme Court Justices and Super-Majority Legislative Override would work to minimize judicial overreach.
First, by limiting the term of scotus judges to twelve years, his amendment would reduce the impact of the typical judge’s leftward drift in office. Second, by a three-fifths vote of the state legislatures, the states may override any scotus majority opinion.
Term limits for justices would bring the typical judge down from Olympus and into the earthly world before he could go senile or full loony-tune Leftist. Knowing that a power higher than themselves will immediately look over their shoulders and judge the judges, the rampant and unhinged social justice warrior temperament of scotus will be subdued.
Members of congress are so loathe to risk reelection, there is zero chance such an amendment could ever emerge from that once august body. These and other corrections to our governing system can only emerge from the sovereign people via their states.
Article V.
A 12-year term for SCOTUS would be a bonanza for the Democrats today:
Chief Justice Rehnquist (1986) would’ve been replaced by a Democrat appointee of Clinton’s in 1998 and in 2010 by Zero.
David Souter (1990) (RINO) while he would’ve been replaced by Dubya in 2002, Zero would’ve appointed the replacement in 2014 (and did, the seat is now Sotomayor’s).
Breyer (D) (app. 1994) would’ve ostensibly been 1 gain for the GOP in 2006, but depending upon this year’s election, could be tossed with a Pres. Hillary in 2018.
John Paul Stevens (ultraleft RINO-1976) would’ve similarly been Dem by now. Replaced in 1988 by a Republican, would’ve been displaced by a Dem in 2000 and reaffirmed as a Dem in 2012 (which it is now with Elena Kagan).
Anthony Kennedy (RINO-1988) would’ve been replaced by Clinton in 2000 and again reaffirmed by a Dem in 2012, so that’s another Dem gain.
Ruth “Buzzi” Ginsburg (D-1993), would’ve been replaced by an “R” in 2005, but pending next year, might be replaced by a D. So one gain for the GOP.
Sandra Day O’Connor (RINO-1981), would’ve been replaced by Clinton in 1993, by Dubya in 2005, and again, another potential loss by next year if Hillary wins (so Alito would be on his way out).
Antonin Scalia would’ve been out by 1998 (app. 1986) and his seat would’ve been in Dem hands for two terms in a row (2000 and 2012), an enormous loss.
Last, but not least is Clarence Thomas. He would’ve been out (though succeeded by another Republican) in 2003, but a Dem would’ve replaced them in 2015. Yet another loss.
In total under a 12-year system would result in a Democrat Chief Justice today with 5 Democrat Jurists and just 3 Republicans, hence a 6-3 Democrat (leftist) majority on SCOTUS. Just in time to rubber stamp Zero’s radical agenda across the board (including trampling the Second Amendment).
Mark
I used to consider Madison a benchmark of conservativism, but then I found out he never ran a big successful company.
Not only was Madison never a businessman but he was also unfailingly a gentleman, kept a civil tongue in his head, never publicly referenced blood coming out of a woman’s “whatever” or made brute threats against his rivals. What fun was there in Wee Jimmuh? How could such a boring man make ANY worthwhile contribution to our country like being The Father of the Constitution (containing no foul language at all)?
One possible effect: The SCOTUS might become even more politically radioactive with POTUS campaigns being waged in light of the date certain of the expiration of each Justice's term. That might lead to the candidates promising even more emphatically to name to SCOTUS someone LIKE (fill in the blank) meaning (wink, wink) to appoint exactly that person. In the already politically poisoned era of today's ultra-partisanship, Demonrat candidates would promise to appoint specific anti-constitutional and particularly social issue revolutionaries and wimpy Republicans would promise not a Scalia or Rehnquist or Thomas but "moderate" social issue revolutionaries committed to constitutional degeneration on a somewhat slower boat.
Think what Gerald Ford would have done to SCOTUS and the Constitution if he had had more appointments. He already gave us John Paul Stevens. What if he had the chance to appoint two more who would likely have been general counsel to some megabucks corporation. What is the bid for Gerald Ford's NEXT SCOTUS nomination? Big Oil bids $______ and gasoline and heating costs rise accordingly if Big Oil wins. Big Pharma wants no restraints on escalating drug prices and no expiration dates on patents and no serious regulation by FDA. Big Pharma bids more than Big Oil. Thats where Paul Ryan and Mitch McConnell run granny's wheelchair off the cliff. All of them are outbid by Big Transnational (perhaps funded also by foreign interests with no love for the constitution either and every desire to pick the bones of our economy). Big Transnational WINS and we lose. No jobs left but those of a decreasing number of government bureaucrats and welfare for everyone else until we die and get out of the way of Brave New Corporation World. As we die off, their taxes will also decline. But, hey, why should there be any bidding at all? The foregoing interests and many others can join forces to BUY SCOTUS and the other fedcourts and establish unresponsive and unelected oligarchy forever.
A successful POTUS candidate would then claim the mandate of the people and of the Iron Law of 50% + 1 for his SCOTUS candidates. People KNEW whom he/she/it would appoint and voted accordingly, you see.
Would a retired justice (by term limit) be eligible for a later appointment as some term-limited governors are? Then the justices with an eye ever peeled to make a future restoration of the power and the glory of being part of a nine member ongoing constitutional convention without need of approval by either Congress or the states, will nakedly campaign on the bench to be remembered for future appointments. They will do this by issuing outrageously idiosyncratic opinions (see Blackmun, Herod, and Roe vs. Wade. It was a 7-2 decision but no one much remembers the specifics of the opinions of the other six babykillers).
AND the mere fact that we think of Demonrat or Republican judges is a loss. Felix Frankfurter was appointed by FDR to be a revolutionary. By the end, he was a conservative. JFK appointed Byron "Whizzer" White, former college football star and IIRC an NFL player, and he was at worst a "moderate" Democrat and voted against Roe vs. Wade and every other abortion-enabling decision. John Paul Stevens had a pro-life record on the 7th Circuit before becoming a turncoat on SCOTUS.
Anthony (Sandra Day O')Kennedy WAS a pro-lifer when appointed and had a long track record to prove it, including nine children of his own, until seduced by Lawrence Tribe to stop voting with Scalia. If he wanted more than twelve years on the SCOTUS, he would have told Tribe to fry ice because he is otherwise too conservative for a Deon appointment and would have permanently alienated too many Republicans by voting for the babies to be killed by the millions.
This idea is not ready for prime time. Congress can expand SCOTUS membership but that has obvious drawbacks as a precedent. Congress has the existing power to remove fed court jurisdiction over chosen topics altogether. That also has its problems. Imagine POTUS Comrade Bernie enacting HIS economic nightmare and Congress removing fedcourt jurisdiction over property confiscation. THEY can play this game too. I have always believed that judicial review was a power grab by John Marshall, then CJ and the dead hand of the discredited money-grubbing Federalist past. I think that is where the problem really resides but I have little hope for reform.
Thanks for your comprehensive post. I believe you’re dead on the money regarding Marshall. I think SCOTUS has been more of a menace than a help since its founding.
Here in Illinois, they are given a 10 year term (its less than 10 years if they are appointed to fill a vacancy and are filing out the remainder of someone else's term), up for re-election each time, and have an unlimited number of terms they can be elected to. I believe Justice Charles E. Freeman of Chicago has been elected 3 times (1990, 2000, 2010).
On the federal level, I'd favor giving them a maximum of 25 years on the bench OR until they reach their 75th birthday -- whichever came FIRST. In other words, in order for a judge to stay on SCOTUS for 25 years, he would have to have been appointed at age 50 or younger, and couldn't have accumulated any other years on OTHER federal courts, because that would count towards the "maximum 25 years" service on the federal bench. I think that rule might push people to look for judges outside of the beltway.
Incidentally, does anyone find it ironic that the people screaming the loudest about the 17th amendment (and arguing that changing the way the founding fathers setup federal offices will "destroys our republic") are the SAME people DEMANDING we change the way the SCOTUS judges are selected and serve? I guess its only bad if OTHER people amend the constitution.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.