September 2020

 Supreme Court Justice Ruth Bader Ginsberg died a day ago, and after 12 hours or so of remembering her life and work, the discussion has turned quickly to her replacement. You may remember that the big news in 2017 was about the death of a Supreme Court judge, and the discussion was all about how (actually, mostly when) to replace him. The Republicans had a pretty good idea: don't do it until after the November election, when they might have won back the Presidency, and then could pick someone "that the American public would really want." (Read: someone that we Far Right Conservatives would like to decide for the American public that they "really want.") If they didn't win the Presidency? Well, they could stonewall the next Democratic President as well as they could  the current one.

   The Democrats of course had a little different take on the matter, and would have liked to get the position filled as soon as possible. Quite a few others who were not overtly partisan agreed. Some felt an urgency to get a full court in place again so that the Country's legal business could go on as expected. And of course there was that time-honored tradition and procedure of allowing a sitting President to nominate whoever he wanted to fill a Supreme Court vacancy, and then to give the President and the nominee the courtesy of  "advise and consent," then an up or down vote in the Senate.

   Well, we all know how that worked out. The Republican-controlled Senate decided that it wasn't right for a "lame duck" President to select a new judge. ("Lame duck" was suddenly defined in the Senate as describing a President who still had almost a full quarter of his elected term in office ahead of him.) They never allowed any action on the nomination. 

  Less than two years later, the Republican president had a new nominee, and a demand from the Republicans for a quick concurrence.  With Republican control of the U. S. Senate, they easily got their new justice. 

   So, here we are with slightly over a month to a Presidential election, and the Republicans give every sign of approving a new justice before that occurs. The only difference this time around is that the potentially “lame duck" President is a Republican, not a Democrat. Is that a case of lack of Republican integrity, or just “the American way?” I fear that, in America today, it is both.

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  When the issue came up in 2017, I remember hearing more than one pundit say that there had to be a full Supreme Court soon, because no decisions could be made until they had a "tie breaker" (a ninth judge). There is some justification for that, because the Supreme Court can’t change the decision of a lower court with a tie vote. They have to defer to the lower court. Still, I have a problem with that. It makes it look like maybe the Supreme Court is a political group, "owned" by whatever party has managed to stack the roster in their favor (i.e, the party with the “tie breaker”). It makes it look like maybe the Republicans - by delaying appointment of a justice who might be too "liberal” - were seeking to keep their options open for a future conservative appointee. That's not the way I remember learning about the Supreme Court in school.

  When I was growing up (in the Olden Days), I remember thinking (in fact, learning) that the Supreme Court was a unique body, completely separated from the Executive and Legislative branches of government. As such, the Court was both as free and as wise as King Solomon, able to decide even really tough problems by blending the law, precedents, and common sense. I suppose this was part of the fantasy of American perfection  that we have always cherished - and still do, even when we know it isn't true. Actually, it wasn't true 216 years ago, when outgoing President John Adams saddled incoming President Thomas Jefferson with Chief Justice John Marshall and several lower court appointees. Adams certainly knew that these judges would be generally sympathetic to Federalist ideals, but he also knew (or so the story goes) that Jefferson particularly disliked Marshall, further rendering harmonious relationships unlikely. More of the American Way?

   I tried to do a little study of the decisions of the Supreme Court over the years, hoping to see some general trends in how united or divided the justices had been at various times. I didn't come up with anything very concrete, but did find one interesting bit of information. In the last 50 years or so, almost all Supreme Court rulings have been decided on votes of either 9 to 0 or 5 to 4. Votes of 8 to 1, or 7 to 2, are very rare. Now, probably not a day goes by that someone doesn't try to assure us  that the United States Constitution is so clearly written that there is absolutely no room - or need - for interpretation. If that is true, then a 9 to 0  would seem almost guaranteed: the nine justices read their brief, then the Chief Justice asks for a show of hands - how many think this is Constitutional (or not Constitutional)? Nine hands go up. Decision made. Now, even given the touted  clarity of the Constitution, I can still picture an occasional situation in which one judge, or maybe two, sees a little point on which they ever so slightly disagree. Okay, concern noted; still pretty much a unanimous decision, but if you want to have your "no" (or "maybe") vote recorded, fine. A Clearly-written Constitution equals an easy vote.

   But then we come to the many 5 to 4 votes. If the Constitution is so easily understandable, how can there be this level of disagreement? I don't think any of the recent justices qualify as real Constitutional scholars (in the sense of having deep knowledge of the historical background of all the various sections), but they are all supposed to be reasonably smart people who have read the document a time or two. So, why the split votes? I think the obvious conclusion is that decisions are not being made on the alleged clarity of the document, but on what the various judges would like the language to mean.

   A conclusion that the so-called certainty of Constitutional language is nonsense, and not the deciding factor in Supreme Court decisions,  is borne out by looking a little closer at the 9 to 0 votes, compared to the 5 to 4 decisions. As one writer put it: " Many of the court’s cases don’t divide along ideological lines. The justices probably don’t bother to express their disagreements in cases when less is at stake ideologically. They don’t care, or they think that the (false) appearance of agreement enhances the court’s image. When a case does raise ideologically charged questions, the justices split along the predictable lines" (Eric Posner, "Why does the court usually decide cases either 9-0 or 5.4," in Slate, 1 July 2014).  If Posner is correct, then the Supreme Court is not part of an independent third arm of Government, but is a mere extension of whatever political party is currently in control of the court membership.

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What can be done to restore some integrity to the Supreme Court, to help them exercise some of that "wisdom of Solomon" that is so much a part of the American dream/myth? Probably nothing. Whatever political group has control over the Court at the moment certainly won't want to weaken their advantage. The party on the outside looking in probably doesn't have any great incentive to change it, either, because they don't want to mess up their own hopes of regaining the power some day.   I think we can write off the Supreme Court as a source of true justice, and (sadly) I think the lower courts are not far behind.

 But, say some changes could be made. What could be done to give "Solomon" back some of his "wisdom?" Here are a few ideas:

     1. Call a Constitutional Convention, and re-draft the Constitution to improve its clarity, and make it harder to claim ideological "truths" that don't really exist. Yes, I know, this will never happen. Still, it's nice to dream that, as a people, we could be smart enough to recognize that a document hurriedly written in the very first hours of Nation-hood -  when the "United States" consisted of a handful of people living in a little fringe of territory along the Atlantic Coast - might not be fully adequate for the 21st Century.

      2. Find a new way to select Supreme Court justices (and other justices, as well) that diminishes the ideological effects, or at least makes them less certain. Rather than a sitting President making the choices, I'm thinking of some kind of lottery in which various groups suggest one or more candidates, and all the names go in a hat. When a seat becomes vacant, the "winning" name is drawn out. Now, I realize that whatever groups got to participate in the lottery would pick people of their own ilk, and "the luck of the draw" might over time leave us with  courts that were lopsided ideologically. Even so, it would put an end to the kinds of "dirty tricks” recently used, and would also remove Supreme Court vacancies as an issue in every election.  

    3. Change the requirement for the Supreme Court to need a “tie breaker” to reverse or modify a lower court decision. Then, change the number of sitting Supreme Court justices to an even number, so there isn't the likelihood of a one-vote Supreme Court decision. Make the Court work harder for all of us than they do for their "bosses." Do we want decisions that could affect the Nation for the rest of our lives to be decided by one (probably partisan) vote? (Note: Such a change in numbers would be entirely legal, and not even precedent-setting. The Constitution does not spell out how many justices there will be, and, in fact, the numbers have changed a number of times in the past.)

   3. Don't allow a Supreme Court decision on less than two-thirds agreement. If a matter is important enough to be considered by the highest court in the land, and if the Constitution is really so easy to understand, then why not demand agreement?  To repeat what I said above: Do we want decisions that could affect the Nation for the rest of our lives to be decided by one (probably partisan) vote?

   4. Get rid of the lifetime appointment for justices. Give them a reasonable time (10 years?) to get settled and learn to work with one another, but give us an escape from those proven to be incompetents or ideologies.

   Oh, I know. None of this will ever happen, but it's the American Dream I'm talking about. I can dream, can't I? Where are you, Solomon, when we need you?




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