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.