Confidence in Justice

Judicial Reform

Before we can even begin to move forward there needs to be a reminder to the courts (especially the supreme court) that the constitution’s checks and balances were designed to prevent any entity or branch of government, or any individual in any branch from being able to exert excessive authority.  The court cannot be the only branch of government that is exempted from that check.  Samuel Alito’s ridiculous proclamation that the legislature had no authority to overrule or to investigate judges either proves he has never actually read the constitution that gives legislatures the right to approve justices, remove justices, amend the constitution, and overrule the judiciary with legislation.  By Alito’s standard congress cannot “codify Roe” because the judiciary could simply decodify  whatever codification they did not like.  In fact our current court has often not only too often ignored precedent simply because they do not like it, but has also declared many sections of long-standing acts unconstitutional, such as nullifying much of the environmental regulations as well as much of the voting rights act.  Certainly 303 Creative not only overturned rights of equal access to any public service of the 1964 Civil Rights Act, the first amendment rule of separation of church and state  (which means, once again one’s freedom to believe as one wills cannot enter into the public sphere if it denies another’s rights or is used by the public to deny another’s rights by attempting to prevent service to those whose values may be not those professed by another’s religions), but for the first time I am aware in any common or civil law decision, a court could actually pass, of itself, a fictitious possibility into a legal possibility.  Even tyrants pass laws first that the courts then upheld and the tyrants may suppress many freedoms, but even Hitler’s courts never made a decision that if someone may want to wear pink shoes and possibly someday might want to hire someone who has religious beliefs that only demons wear pink shoes, and should the day come when such a demon who wants a tailor to make pink shoes he has a right to deny service to make them.  Frankly I don’t care, because if I wanted to have someone design me a pair of pink shoes, I sincerely doubt I would want to hire a person who believed pink shoes to be demonic.  It is not the same thing as a public official refusing to marry a couple , a doctor refusing top assist others because of “religious religions” or refusing access to a public restaurant, accommodation, or public facility.  What this case was about was no gay couple wanting a wedding designer to design their wedding, and no wedding designer with a website to design website, but the possibility that if such a designer exist and should a gay couple want to hire someone to plan their wedding (again I wouldn’t hire a mere name for something like a wedding, I would want to seek a wedding designer who I felt would plan my wedding successfully).  But 303 Creative was not an existing entity and Elenis was not an existing defendant, and such a case to even be docketed cannot possibly be docketed anywhere until both the defendant and the appellant exist.  That is like saying Fani Willis could indict Popeye because some mother at some time may want to refuse to serve spinach to her child and there might someday be a child who wants to eat spinach and sues his mother for not providing the spinach.  

If justice enters into such a realm and any justices who entertain the possibility that possibilities can be adjudicated before they become possibilities…no, there must be a way to automatically disqualify such justices from deciding cases of such nonsense from ever being able to decide any more cases…ever. 303 Creative is not a judicial decision by any sense of the imagination even though it is a very imaginative decision based on a totally fictitious case.  So it certainly could have been written and published as judicial fiction, but to make it judicial law must lead to action .  

We need prosecutorial action against justices who themselves violate laws, or who decide cases in which they have a decided interest or a prejudicial involvement in the outcome of the decision.

Even if Clarence Thomas had not been bribed into some of his decisions, I cannot fathom how he has totally avoided scrutiny when he his wife had a known interest in Trump’s attempt to cling to power, and the lead architect in Trump’s “legal” plan was a man who clerked for Thomas and communicated openly with Thomas’s wife (and maybe with Thomas). There needs to be brought forth a method to establish a permanent division of the justice department, or a new authority to hold the judiciary accountable, and judicial malfeasance must require extraordinary penalties.  

It has thus become commonplace to assert that the Constitution itself contains no discernible rules or instructions concerning how it is to be interpreted.  All such matters are instead left to the assumed exclusive discretion of courts, to be exercised in accordance with whatever criteria judges think most appropriate. Thus, the twin pillars of American constitutional practice today have become judicial supremacy and interpretive license:  The power of constitutional interpretation is exercised by a supreme judiciary according to interpretive criteria of the judges’ own choice.  But that commonplace belief is false and should never have become the expectation of the judicial branch, nor should it have expected to have such an extraordinary role beyond the normal constitutional checks and balances.  Today we have the dual legal contradictory judicial proclamations of judicial restraint being put forth by those who have no judicial restraint and “original meaning” by those who have apparently never read any of the debates on the original meanings or deciphered in any way the multitude of meanings any of the founders might have had and who proof text their “meanings” as if they were Jehovah’s witnesses knocking on one’s door to prove the meaning of the Bible from the pre-selected eleven non-contextual Bible verses that are so supposed to prove the entire Bible written over a thousand years has only the meaning those eleven verses say it has.

So to use  one of those founders as a model, who wrote extensively about the judiciary, James Madison. Madison was always careful to emphasize that the Constitution gave the judiciary no intrinsic superiority over their co-equal branches in deciding the boundaries of constitutional power and the content of constitutional rights.  Quite the contrary: “The several branches being perfectly coordinate by virtue of their common commission,” none could “pretend to an exclusive or superior right” to decide constitutional disagreements, Madison wrote in Federalist 49.  Madison reiterated this view as a prominent Member of the First Congress, in 1789, and adhered to it throughout his life.

John Jay, our first Chief Justice (and unduly relegated to obscurity in my opinion), along with the the other first justices wrote a letter together after the judiciary had been organized by congress to george Washington.Much is about the same supreme justices also needing to serve as appellate judges, and in essence judge themselves  But there are some issues they brought forth that are still, or should be still, quite relevant.  “We, the Chief Justice and Associate Justices of the Supreme Court of the United States, in Pursuance of the Letter which you did us the Honor to write on the 3rd of April last, take the liberty of submitting to your consideration the following remarks on the "Act to establish the Judicial Courts of the United States."

“It would doubtless have been singular, if a system so new and untried, and which was necessarily formed more on principles of Theory and probable Expediency, than former experience, had in practice, been found entirely free from defects.

“Had the Constitution permitted the Supreme Court to sit in judgment, and finally to decide on the acts and errors, done and committed by its own members, as judges of inferior and subordinate Courts, much room would have been left for men, on certain occasions, to suspect, that an unwillingness to be thought and found in the wrong had produced an improper adherence to it; or that mutual interest had generated mutual civilities and tendernesses injurious to right.

“We are aware of the distinction between a Court and its Judges, and are far from thinking it illegal or unconstitutional, however it may be inexpedient, to employ them for other purposes, provided the latter purposes be consistent and compatible with the former. But from this distinction it cannot, in our opinion, be inferred, that the Judges of the Supreme Court may also be Judges of inferior and subordinate Courts, and be at the same time both the controllers and the controlled.”

Now the last sentence above is not irrelevant even though he is still speaking of  the initial dual responsibility of being both circuit  and appellant to their own powers, because if a judge can encourage cases (as in Thomas’ dissent in Dobbs) cases he wishes to rule, or if a judge can “judge” a case in which he has long stated and/or professional interest in promoting, then the consequence will be that “Appeals in which there is, at least, much appearance of reason on both sides: in such cases, therefore, not only the losing party, but others, not immediately interested, would, sometimes, be led to doubt whether the affirmance was entirely owing to the mere preponderance of right.”

In the Federalist #78, Hamilton at first seems to be proposing the constitutional authority over legislative authority, but in the end he comes down to pretty much the same conclusion of the great English jurist (in my opinion, great), Lord Coke.  The federal courts "were designed to be an intermediate body between the people and their legislature" in order to ensure that the people's representatives acted only within the authority given to Congress under the Constitution.”   But then Hamilton goes on to write, “Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power.  It only supposed that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.  They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental”.  Much as Coke often took a stand against King and any authorities who might  simply not carry out their duties to favor the people, Coke began further developing the concept of the mandamus that compelled officials to serve the people above the law.

During the post civil war era, the court pretty much let congress determine issues of slavery and its expansion.  Seen in this manner, Dred Scott was not necessarily as wrong-headed a decision as we want it to be today.  The courts (excluding a very minimal amount of judicial activism by Marshall) mostly did not see itself as the arbiter of public sentiment. But if it had, it is doubtful there was either constitutional or legal precedent for the decision to be different than it was.  There were a few northern states that had granted free blacks to have voting rights, but none allowed them to serve on juries or participate as policy makers, and those that did let them vote, allowed them to vote, only with a “secondary” or partial citizenship status.  Dred Scott may have been a very bad decision but I am totally unable to foresee any other possible outcome, but Justice John McLean did write a dissent that drew both on international law, and some court precedents from both state and federal courts that could have pointed the court in a direction.  The most telling case however was an English decision by Lord Mansfield in Somerset v. Steuart stated that Charles Steuart could not force a slave he had purchased in Virginia and then brought back into slavery in the Americas.  That case was nearly a mirror to the Dred Scott case—with the exception that it was in the United States, and though McLean all freed blacks should be regarded as citizens, American was not ripe for that position in any state north or south.  If some abolitionists might have decried the court’s decision, there were only seven elected republicans who were more disaffected whigs than abolitionists.  Not that there was no northern opposition to slavery, but there was little support even among a majority of abolitionists to support McLean’s position of dissent.  The court actually had very little interest in justice, per se, other than determination of property rights.

Historian John Oakes noted this when he relates the story of a southern senator who wanted to take the issue of expanding slavery beyond the Mississippi and was scoffed when a border-state senator proposed asking the Supreme Court to decide the issue in 1848, other senators ridiculed his idea as implausible. “The Constitution was interpreted as variously as the Bible,” Senator John P. Hale of New Hampshire responded. (The Bible having many differing interpretations.)  The point of course being that far from seeing itself as a “superior” body of government they almost always deferred legislative responsibility to legislative bodies and executive responsibility to executive authorities and really never saw their role as gatekeepers of justice apart or above the other branches.  Nor did they see their role of interpreting the constitution to be bound by any particular “intent.”  They viewed their role to be one that balanced to as much a degree as possible between state interests and federal interests and the only interpretation of supremacy they felt that the constitution gave to any of the four partners—executive, legislative, judiciary, and state—was that the federal government had the total authority over states in interstate commerce.

Another blatant example of Alito’s judicial incompetence was in citing Gibbons v. Ogden as the defining precedent to redirect abortions to state authority.  Did he actually read the Ogden decision?  In that case Marshall, in a very convoluted manner, refutes that any state powers could possibly override federal authority in regards to interstate commerce.  Alito doesn’t bother to explain the relevance of the citation, but more than likely he simply didn’t understand it.  Just as in citing Hale that abortions could not occur post-quickening he didn’t quite comprehend that quickening was nearly the time of the first trimester in Roe.  Of course he doesn’t really care, stating boldly that he has the “guts” Sandra Day O’Connor lacked to overturn abortion.  

A gutsy justice, as Alito proclaims himself to be, is an anti-justice who is gutsy enough to make decisions however he chooses and has no relationship to what is actually just.  He would have made a great justice on the Nazi Supreme Court who all liked to think of themselves as mutige Gerichtsentscheidungen.  (having judicial gutsiness “mutige”).  He is inappropriately gutsy on any common law court.  

So there must be action to set up a prosecutorial body  to investigate judicial conduct, to oversee the judicial recusal process and remove it from the judiciary themselves, and to prevent judicial malfeasance either through gutsy rulings (which should be set aside and referred to Congress to either override or let stand); and that has a power similar to the parliamentarian rule that allows an appropriations bill to bypass (if there is no new “rule” or “law’) to determine if a case has appropriate standing to even be brought in any court.

And finally the point in the constitution that says justices tenure is determined by “good behavior” should also be a part of the new oversight agency, with the power to suspend any judge from participating in judicial decisions until it can be determined if they have violated any of the conduct deemed to be “good behavior”.

If the justices themselves do not take their responsibilities as judges to mean they must hold themselves beyond approach to create the faith necessary for justice to be considered unbiased, then the entire justice system is undermined.  Today we face what John Jay said might occur if “such room would have been left for men, on certain occasions, to suspect, that an unwillingness to be thought and found in the wrong had produced an improper adherence to it; or that mutual interest had generated mutual civilities and tendernesses injurious to right.”

Unrespected justice cannot carry the weight of authority, and without that respect its authority is not seen to be just.  Unrespected justice carries no authority of awe to it, and justice crumbles into crumbs.