Is our Highest Court Really Supreme?
The next session of the United States Supreme Court is about to commence on October 2.
“SCOTUS” is not only king of the judiciary branch, but it also has the power to override any actions of the President and Congress that it deems unconstitutional. Moreover, the decisions of the Court can have a profound impact on our basic rights, civil liberties, who can remain in this country and even, at times, who will live and die. And the people who are appointed to make these crucial decisions are allowed to serve for their entire lifetimes if they choose. While they can in theory be impeached, only one ever has (Samuel Chase way back in 1804), and the Senate ultimately acquitted him. Indeed, the longest sitting Justice, William Douglass, served for over 36 years- the equivalent of nine Presidential terms!
Although many know the very basics about the Justices- that there are 9 of them, generally split among liberals and conservatives, with vacancies appointed by the President and confirmed by the Senate- it surprises me how few educated people can actually name the folks who comprise our country’s single most powerful institution (yet have no trouble naming all of the Kardashians). Even fewer are familiar with the surprising criteria to serve as a Supreme Court Justice.
Because of the extreme power conferred upon the Justices of the Supreme Court, one would expect that our brilliant forefathers would have carefully crafted the U.S. Constitution to ensure that only the “cream of the crop” (those with the highest intellect, integrity, fairness, and judgment) would be allowed to serve in such an important capacity, right?
For starters, one would think that our founders would have wanted to make sure that the Justices chosen would have the utmost loyalty to the United States. As red-blooded and patriotic Americans, we have always tended to really like that in our leaders. When it comes to serving as President or a member of Congress the framers required that everyone who serves be a U.S. citizen. Indeed, the current President repeatedly asserted that his predecessor was not born in the U.S. and was thus not qualified to serve as President. Mr. Trump made the same claim when it came to his biggest challenger in the Republican primary who had the audacity to be born in that untrustworthy, hockey-obsessed country to the North. While these allegations were ultimately established as either false (Obama) or likely legally unsupportable (Cruz), there were millions of Americans who subscribed to this view, apparently concerned that these purported “foreigners” might be traitors.
And yet, oddly enough, there is no citizenry requirement when it comes to serving as a Supreme Court Judge. In fact, there have been several Supreme Court Justices in history (actually six for you trivia buffs) who were born outside the country. Madison, Jefferson and such must have had a brain cramp that day! I am baffled that the folks who were so concerned with our 44th President’s place of birth have made no similar noise about the fact that the people deciding our nation’s laws for decades could actually be born in Iran, Russia, or even North Korea.
Well then, surely our learned forefathers had the foresight to insist that anyone serving on the Supreme Court be of a sufficient age– we undoubtedly want these important individuals to have developed adequate life lessons and maturity to make informed and well-reasoned judgments, right? After all, the founders saw fit to require that a Member of the House of Representatives be at least 25, a Senator be at least 30, and the President be at least 35.
Nope! A college student playing beer pong, the babysitter down the street, or even those attending a One Direction concert are all, incredibly, eligible for the position of Supreme Court Justice.
What about at the back end of life when folks are more prone to memory loss, mental lapses and an increased need for naps? The job of a Supreme Court justice is pretty darn taxing. With no disrespect to the elderly, I’m not sure that many folks in their eighties still have the mental acuity and stamina it takes to serve on the Supreme Court (or even to stay awake to read a 100 page brief or listen to an extended oral argument). You probably wouldn’t feel too comfortable having your brain surgery performed by someone at that age.
And yet there is no mandatory retirement age when it comes to the Court. Indeed, there are currently two Supremes in there eighties (Ginsburg and Kennedy) and another fast approaching his eighth decade (Breyer).
Well at least we can gain some comfort in the fact that the people who occupy this crucial position in our democracy are required to be well-educated lawyers, right? Think again! Apparently it did not occur to the authors of the Constitution that it might be important to have some legal training in order to understand and interpret the law. Did our forefathers go to a plumber for their colonoscopies?
In fact, there is no (nada, zero, zilch!) educational qualification to serve as a Supreme Court Justice. What the heck were they thinking?
One surprisingly welcome omission to the credentials to be a Supreme Court Justice in the Constitution is the absence of any gender or race requirement. Since many of the forefathers were not exactly “progressive” when it came to women and minorities, perhaps they felt that this was such an absurd proposition that it need not be actually stated in writing. Turns out that they were nearly right. No black person was appointed to the Supreme Court until Thurgood Marshall in 1967 — 180 years after the Constitution and over 100 years after the civil war ending slavery. Women did not get a representative on the Court until Sandra Day O’Conner in 1981. Today’s Court has three women, which rather incredibly represents 75% of all the women who have ever served on the Court in its 227-year history. And despite the fact that Hispanics constitute nearly one-fifth of the U.S. population, there was no Hispanic representative on the Supreme Court until Justice Sotomayor in 2009.
While the more recent inclusion of women and minorities is a positive development, the manner in which the Justices are now chosen is not given the increasing and overt influence of politics. The Supreme Court was intended to be the most independent branch of government. The founders did not want our nation’s laws and rights as citizens as easily swayed by traditional political influences- money, lobbying, and the changing tide of which political party was in vogue at a particular time. Thus, the reason for the rule of lifetime tenure.
And indeed Supreme Court Justices had for centuries been appointed primarily based on intellect, legal acumen, and integrity. It used to be considered poor form to even ask a potential candidate his opinion on a particular issue in advance of his consideration of an actual case. As a result, both parties have appointed justices who rendered decisions that did not always comport with their own views (See Republican appointees Stevens and Souter and Democrat appointees White and Frankfurter). That’s because the Justices’ greater loyalty was to the rule of law, not the political party that appointed them. Their decisions, whether you liked them or not, were largely based upon what they at least genuinely believed the law required.
Boy has that changed. Today, politics is the principal driver of all Supreme Court appointments (as well as the opposition to same). Every prospective candidate is vetted primarily for their position on specific controversial issues and how much they can be assured in advance of a case that the candidate will rule a certain way. This completely undermines the rule of law and the very purpose of the Supreme Court – to be a truly independent branch of government and to serve as a check on legislative and executive power.
The single biggest impact from last year’s Presidential election, I would argue, is not its impact on health care, taxes, immigration or the environment- it’s only a four-year impact (so far). Rather, it is the composition of the Supreme Court. The advanced age and tenuous medical condition of several of the Justices is apt to mean that the current White House occupant may very well appoint four Justices (44.4% of the entire Court!) before his time is through. Further, given the strict litmus test applied to nominees these days and the new strategy to appoint the youngest judges possible to extend their reign, this will in all probability produce a massive swing in the balance of the court for the next half of a century.
Regardless of how you feel about the current President, or your political affiliation, is this really the court system we desire as a country?
For those who say that this outcome reflects the will and referendum of the people, who voted Mr. Trump into office knowing that the composition of the Court was a potential issue, one cannot ignore the fact that he received nearly 3 million LESS votes from American citizens than his opponent.
But, regardless, should the composition of the Supreme Court and the rule of law so dramatically change based on which party happens to be in control at a fortuitous moment in time? The Presidency and Congress were designed to be the branches of government that reflected (at least in theory) the will of the people, not the Supreme Court. Recall that the vast majority of the public at one time did not believe that blacks were actually people entitled to the same human rights as their fellow lighter-skinned citizens, but the rule of law (eventually) assured otherwise. Throughout history there have been examples where the Court has led the way in establishing justice and protecting legal rights even though it may not have been popular with the majority of Americans.
Our forefathers really blew it when it came to creating their most important and powerful institution.
(By the way it’s Sotomayer, Kennedy, Kagan, Thomas, Roberts, Alito, Breyer, Ginsburg, and now Gorsuch- or for those who need a mnemonic to remember them: “Smart kids know to read about basic government- Genius!”)
Photo Coyright: icedmocha, 123rf.com
