James M. Redwine

Dobbs v. Jackson

Equal Protection

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CNN reports that Americans’ confidence in the U.S. Supreme Court:

“[I]s at its lowest ebb in terms of public opinion in the history of Gallop polling.”

CNN attributes much of this lack of faith in the competence and integrity of the Court to the overruling of Roe vs. Wade in 2022. Then, even three members of the Court publicly dissented and accused the six-member majority of playing politics. Justices Breyer, Kagan and Sotomayor dissented in Dobbs v. Jackson that overruled Roe and stated:

“Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law.” 

The essence of the dissenters’ warning was that the majority was denying options to America’s female population in violation of the Fourteenth Amendment to the U.S. Constitution. A similar issue is the gravamen of the current issue before the Supreme Court in the matter of whether the 14th Amendment can be used to deny Donald Trump the right to run for president. Or, as is more important, whether the federal or each state’s government can deny American citizens the right to choose whether to vote for him.

People on both sides of Trump’s possible candidacy raise the alarm that our democracy is in peril if Trump is or is not allowed to run. Many who lost confidence in the Court over the denial of a “Woman’s right to choose” are sounding the siren against Trump’s choice to run. And many who celebrated the loss of Roe’s protections of a woman’s options in maternity matters, are up-in-arms at the prospect of denying Trump the right to run.

What Americans are saying by their low opinions of the Supreme Court validates both sides’ fears that our democracy may be teetering. For the essence of democracy is freedom of choice. When the U.S. Supreme Court addresses the matter of Colorado’s position that its voters cannot be trusted to make their own choices, we will all be watching. Perhaps we will find that regardless of how the Court decides Trump’s fate, the canary in the coal mine of democracy will be at risk. Because we all believe that everyone should have the freedom to choose what we do. And our government’s duty, especially the Supreme Court’s, is to guarantee no one has the power to deny others their right to make a different choice. Nowhere is that bedrock of our democracy more crucial than in free and open elections.

False Flags

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Photo by Peg Redwine

The United States Supreme Court has upset the United States Congress since Chief Justice John Marshall created the Court’s power to be the final authority on what our Constitution means. The Court, in the case of Marbury v. Madison, used President Thomas Jefferson’s pride against his logic and traded an insignificant presidential appointment by John Adams, Jefferson’s bitter political enemy and his immediate predecessor, for the immense and previously non-existent “Power of Judicial Review”. Ever since 1803 Congress, the Executive Branch and the American public have regularly wrung their hands as the Court decided numerous atrocious cases such as Dred Scott, Bush v. Gore 2000, Citizens United v. FEC and Dobbs v. Jackson. Yet from 1789 when our Constitution was ratified until today the authority to balance the power of the Supreme Court has been clearly set forth in Articles I, II and III of the Constitution. It just requires that Congress find the courage to do so. Article III provides that justices of the Supreme Court:

“[S]hall hold their offices during good behavior.”

And it is up to the House of Representatives to decide what is “good behavior” and whether a justice has violated it, such as by committing some unethical act. Then the U.S. Senate holds a trial on the charge of impeachment.

In our current legal and political climate many members of Congress have publicly stated some justices have committed impeachable offenses. However, instead of advancing articles of impeachment Congress rails against the Court and demands the Court police itself and come up with written ethical rules and sanctions. Not surprisingly, the justices demur; no one likes to be controlled by anyone else, especially if those anyone elses are as lacking in “good behavior” as the Court.

If Congress wishes to influence the personal behavior of the justices in such areas as conflicts of interest and abuse of their special status, all Congress needs to do is apply the Constitution. On the other hand, we as a country, could find the courage to quit prescribing pain killers and perform some real, curative surgery on the judicial limb of our three-branch government.

It is historically established that Article III’s requirement that United States Supreme Court justices’ good behavior standard is pro forma only. Such instances as a former slave owner, Chief Justice Roger Taney in 1857, deciding slave Dred Scott had no rights that needed to be protected or a majority of Republican appointed justices deciding Republican George W. Bush “won” the presidency in 2000 are simply winked at.

The remedies for our nation’s possibly fatal illness of public loss of confidence in the Court may be painful and difficult to endure, but the alternatives are worse. The impeachment of all justices for every breach of decorum would be wrong, unfair and impractical. It would also not solve our problems.

But if Congress truly wishes to put the balance back in our democracy, I suggest we first institute term limits for justices. Our presidents can serve only 8 years. Perhaps a 10-year term for justices would be workable. Also, federal judges are now nominated by the President and confirmed in the Senate. Why not implement a democratic system for all federal judges so that all citizens, not just a select elite few, would have the right to help choose those whose decisions can affect us all? Of course, such changes will require much thought and input, but all serious illnesses should.

In other words, instead of continuing to complain as we avoid the hard choices, let’s choose the harder right instead of continuing to fly false flags that only apply band aids.

Photo by Peg Redwine

Lemonade

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Photo by Peg Redwine

Liberals are upset that the leak from the U.S. Supreme Court may signal that the case of Roe v. Wade, 410 U.S. 113 (1973), may be overturned or, as is more likely, modified. Conservatives are upset there was a leak from the Supreme Court that may allow public pressure from Liberals to influence the Court to not modify Roe’s holdings.

Neither Roe v. Wade nor the case that followed it, Planned Parenthood v. Casey, 505 U.S. 833 (1992), is before the Supreme Court for decision. They could be referred to and overturned or reaffirmed by the Court within its decision of the pending case of Dobbs v. Jackson, No. 19-1392 that will be decided in 2022. As there has not yet been an official decision in Dobbs, it does not have an official public citation.

Liberals celebrate the leak and abhor the substance of the draft opinion authored by conservative justice Samuel Alito. Conservatives celebrate the preliminary opinion and abhor the leak. Both Liberals and Conservatives find reasons to attack the institution of the Third Branch of our democracy as they clamor for it to be fundamentally changed. Liberals want to “pack” the Court so as to dilute its current conservative majority. Conservatives want a vigorous investigation into the leak with the hope the public will be outraged if some left-leaning leaker is identified as the culprit.

I agree with Shakespeare’s character, Mercutio, in Act III, scene 1 of Romeo and Juliet when his imminent death results due to an irrational feud between the families of the lovers:

“A plague on both your houses!”

However, if we are to be constantly accosted by railings of both Liberals and Conservatives about the need for modifications in the United States Supreme Court, let us consider making some constructive changes. After all, no rational American wants to do away with the Court. We all know one of the main reasons our country has outlived every other constitutional democracy on earth is our equally competing three branches of government. We must support the maintenance of all three, including the Judicial Branch.

When it comes to the Judicial Branch, political commentators often assert it is non-political and must remain so. They are correct if they mean the actual decisions of the Court. No judge should allow political influence to affect his or her decision. But when it comes to maintaining the public’s confidence in the non-political basis of a judge’s decision, it is the processes of judicial selection and retention that are most important.

One reason the public believes the members of the Supreme Court are politically motivated is because the public has no influence on how the justices get their life-time jobs nor any realistic way to remove them. Presidents are elected every four years with the possibility of only one more four-year term. Representatives are elected every two years and Senators are elected every six years. The public has a right to remove them. Supreme Court justices are nominated by one person, the President, as the President sees fit. The public’s influence is greatly attenuated, in fact, virtually non-existent.

At a minimum, the public should have the assurance that many of the most vital issues of their lives will not be at the mercy of the same five-member majority of the Supreme Court for an unknown period. Perhaps our current national furor could be a catalyst to, at least, set term limits for the Supreme Court justices. A ten-year term is what I suggest but the public, through its federal Legislature, should decide such issues. It is fair and in our own best interest in getting well-qualified justices who are willing to serve, to grant the retired justices generous life-time pensions once their term is up. But in return, the retired justices would agree to neither seek nor accept another judicial position ever again.

The possibility of term limits for the Supreme Court might help assuage the current calls by Liberals and Conservatives to radically control what must remain one of our three independent branches of government. Term limits is a better solution than a continuing loss of public confidence in and, perhaps, a loss of independence for, our Supreme Court. In other words, we do not want to make the same types of mistakes as did Romeo and Juliet in their final Act. We do not need to continue on our road toward possible suicide for our democracy.

p.s. Gentle Reader, Peg and I have two upcoming book signings for our new historical novel, Unanimous for Murder, that is a sequel to JUDGE LYNCH!. The first is May 17, 2022 from 10 a.m. to 4 p.m. at the Osage County Historical Society Museum at 700 Lynn Avenue in Pawhuska, Oklahoma. The second is May 20, 2022 at Capers Emporium, 602 Main Street, New Harmony, Indiana from 2 p.m. to 5 p.m. Please drop by and say hello!