A crippled court…
Now that Trump has won, the GOP-controlled Congress will probably receive a new nominee for the court to replace Obama’s. When it looked like HRC would win in a landslide in the Electoral College (what a difference a day makes!), there were major threats from Congress to the effect that they wouldn’t approve any nominee during her presidency. That would have been yet another blow to an important but sick democratic institution and would have continued its crippled state we saw in many important decisions during the last months with the constant threat that lower courts’ rulings are left standing when there’s a tie 4-4 vote. Now, with the tables turned, it’s possible that the Dems will do the same thing to Trump unless he nominates someone the Dems can live with (the rejection of Bork offers a precedent of what the Dems can do).
With hindsight, Trump would want to guarantee his nominee would ensure a conservative agenda, probably a Scalia-clone (isn’t Thomas enough?). Ensuring any agenda from your nominee is hard to do, though. Earl Warren was the conservatives’ worst traitor and the progressives’ delight—that justice nominated by Eisenhower shed his wolf clothing and became a liberal lamb, presiding over many important decisions that upset conservative apple carts. The situation was exacerbated for Ike and the GOP because Warren was even Chief Justice! CJ Roberts has shown a wee bit of that irascibility and independence too, earning the wrath of conservatives in many cases. Kennedy and Souter also have offered many surprises. No one knows whether the conservative side of the court will be emboldened by Trump’s win and Sessions nomination to the AG post (that will probably be filibustered by the Dems in the Senate unless it eliminates the filibustering tradition—I can see some sleepless days and nights in old Dems’ futures).
Unfettered by politics (many positions in the lower court system are either patronage or elected) and knowing they have a lifetime job, a SCOTUS justice has free rein to analyze a case in detail on its merits. These characteristics of SCOTUS are important to our democracy. Of course, there are justices on both sides who can’t see beyond the politics—notably Scalia and his marionette Thomas for the conservatives, and Ginsburg for the progressives, who can’t seem to refrain from speaking her mind. This is just a reflection of our toxic political environment in this country, something that seems like a chronic disease as seen by the results of the election. But historically and on a whole, the SCOTUS justices tend to go their own way, much to the consternation of the senators approving them and the presidents who nominate them.
By the way, our revered Constitution, along with the Electoral College, created another problem with respect to the Supreme Court—Congress determines the number of justices! What might have happened in HRC’s case is that the GOP-controlled Congress would have decided to vote for a bill that limits the number to 8 so she couldn’t nominate the ninth. “What? How’s that?” you say. Yes, they could do that. In the Judicial Circuits Act of 1866, the number was changed to 7 from 10, preventing Andrew Johnson from appointing anyone new to the court (Congress later tried to impeach Johnson). (Abe Lincoln, that GOP hero who’s probably turning over in his grave with present GOP antics, and his cohorts changed the number to 10.) With the chance to increase the conservative majority, such an action seems unlikely, and, if a slot opens up, Congress would probably keep that old number 9 going for a while.
The venerable Constitution’s failure to fix the number of justices has historically caused a lot of chaos, in fact. The congressional Judiciary Act of 1789 set the number at 6. In 1807, it was changed to 7; in 1837, to 9; in 1863, to 10; in 1866, to 7; and in 1869, to 9. Note that these changes tend to occur in times of turmoil (in all cases, times in the acrimonious period leading up to, during, and just after the Civil War), which is what we have in 2016 where the country is completely polarized (a virtual tie in the popular vote, in spite of complaints from disgruntled HRC supporters who rant, “But she won the popular vote!”—hindsight is 20/20, and you should change the rules before the election if you don’t like them). Note that the turmoil is often increased when these changes are made, especially when the number of justices changes to an even number, as in Lincoln’s case.
As with any committee, an odd number is required. We might deplore the many 5-4 decisions, but that’s better than the historical and current disaster we’ve seen with tie decisions. The extreme alternatives, requiring a unanimous decision or clearer majority, not a simple one (6-3, for example), would also cripple the court, but ties are worse because NOTHING is decided in that case. Above all, SCOTUS must make a decision. They only hear about 80 cases per year. Those cases have come all the way through the court system, so usually they are important decisions for the country. Not to make a decision is an abdication of judicial responsibility—in short, the justices would not be doing the job they were put on the court to do.
As with the Electoral College, a constitutional amendment is needed to fix the number of SCOTUS justices (any odd number is probably OK, but the “committee comment” is applicable—the IQ of the Supreme Court is the lowest one among the justices—I have a few candidates—divided by the number of justices); require Congress to act on a nomination, not table it (Congress WAS in violation of the Constitution for its recent actions with Obama’s nominee if we interpret “advise and consent” literally, although now it’s a moot point); require the Chief Justice to be determined from the sitting members of the court when the current CJ retires (I’d actually opt for a rotation every few years); and set age and term limits so that we guarantee justices have some kind of connection to the reality of a changing country and world, both of which have changed a lot since 1789!
Many of these reforms would prevent “loading up” SCOTUS and making it into a biased decision body for many years. They probably won’t occur because whichever party controls Congress will always want to load up the court to further their own political agenda. The 20th century and first decades of the 21st have seen anything but an impartial court. It has become a biased and undemocratic institution and a negative for American democracy and will probably continue to be so if you look at things objectively. It will now tilt in the direction of strictly following the Constitution, that mossy old document that is badly in need of some serious editing—this implies a conservative or retrograde-conservative agenda and not a progressive one emphasizing people’s rights.
In particular, our country cannot function with a crippled Supreme Court, no matter what orthopedic disasters occur in the next four years. The present situation of 8 justices is insane, but it could get much worse. SCOTUS was almost an afterthought of the Founding Fathers, who lacked the ability to see its importance for American democracy. Many small-minded people now only see it as their tool to perpetuate bigotry and bias, and others have seen as their right hands to further a left-leaning agenda too. As with the Electoral College and many other mistakes the Founding Fathers made (clarifying the Second Amendment, for example), the Constitution needs to be modified to make reforms to the Court. It’s not happening anytime soon, if ever, so our country will continue to spin down into that morass where representative democracy becomes an oxymoron—the apocalypse can be political too.
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Action on the southern border! No, it’s not Trump beginning the construction of The Wall. It’s Chen and Castilblanco fighting terrorists, a cartel, and neo-Nazi militias. In Angels Need Not Apply, the deadly duo from the “Detectives Chen and Castilblanco Series” go undercover to fight crime as part of a national task force. This novel is available in all ebook formats.
And so it goes…
