James M. Redwine

U.S. Supreme Court

You Say You Want A Revolution

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Photo by Peg Redwine

The Beatles sang:

♪ You say you want a revolution
…
You say you’ll change the Constitution
Well, you know
We all want to change the world
You tell me it’s the institution
Well, you know
You’d better free your mind instead ♪

I do not know why those British songsters were singing about changing America’s Constitution during the Viet Nam War. Perhaps they were just selling a song or perhaps they felt it was a return to 1776. Regardless, today in the United States it seems a lot of Americans seek to remake America in their own image and the quickest way is a revolution. Of course, not much thought may have gone into what a revolution would truly mean in 2025 et. seq.

On the other hand, James Madison of the small body and the gigantic brain gave the written word to the revolution he had just participated in and the possible future ones he wanted to prevent by designing a United States Constitution based on a theory that all humans seek to expand their power as much as they are allowed. Therefore, for a democracy to continue existing, the bedrock of our country had to be a government made up of separate functions controlled by competing separate and equal powers. As a people we have had a history of teetering from side to side with only occasionally tipping completely over to any one branch gaining too much power.

The Civil War broke out because all three branches chose conflict over compromise on the issues of slavery and the human rights of African Americans. On other visceral issues, such as Native American rights, Women’s right to vote, use of alcohol or marijuana or wars such as World Wars I and II, Korea, Vietnam and Iraq, we have managed to let the struggling of the separate governmental powers find a way to come out in an acceptable equilibrium.

We have had countless opportunities to lose our democracy but have eventually stepped back from the brink. The United States Supreme Court has taken more than one foray into excessive power, such as Dred Scott v. Sandford (1857). During Chief Justice Earl Warren’s reign (1953-1969) the Court’s ultra-liberal rulings had much of the public up in arms. There were even billboards on the highways calling for Warren’s impeachment.

And the Legislative Branch has had its attempts at being the conscience of America also. For example, Wisconsin Senator Joseph McCarthy set himself up to be the ultimate determiner of what a “true American” was. During the era of “McCarthyism” in the 1940’s and 1950’s the American public generally bought into his “Red Scare” tactics until the facts overcame his allegations.

But it has usually been the Executive Branch where the abuse of power has been the most obvious. The most salient example was Franklin Delano Roosevelt who was president from 1933 until his death during his fourth term in 1945. Even though a great majority of both Congress and the American people objected to American involvement in WWII, Roosevelt manipulated the United States into the war. Of course, he had the aggression of Japan to help his argument.

It was Roosevelt’s long-term in office and some of his unpopular policies that brought about the 22nd Amendment to the U.S. Constitution that forbids anyone from serving more than two terms as President. Although some supporters of President Donald Trump have advanced the possibility of an exception to this amendment for President Trump. Such moves on behalf of Donald Trump and the current makeup of the U.S. Supreme Court are raising concerns among anti-Trumpers. There exists the possibility that neither the Supreme Court nor the Legislature may provide a proper balance for our democracy as both may be biased in favor of President Trump, especially as about one-half of the electorate has supported him and his policies.

While a revolution may be extremely unlikely, so have been numerous other shifts in power in America throughout our history. There is no need yet to call for extraordinary action by any branch nor from the news media or the public. However, it is the fabric of our democracy that may be being tested once again. There is no harm in remaining true to the wisdom of our nation’s charter and there could be harm from failing to reference it.

Photo by Peg Redwine

The Scarlet Bills

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Congress is demanding a code of ethics for the U.S. Supreme Court. So is the national news media. Congress and the media may not see eye to eye on much but they do agree that the Judicial Branch should be controlled by the Legislative Branch. It appears the ideology of Israel’s Prime Minister Benjamin Netanyahu has infiltrated the American Garden of Eden with a poisoned pome and Congress is champing to chomp.

Congress teaching ethics to the Supreme Court is like Helen of Troy teaching matrimonial loyalty to Hamlet’s mother. If Congress were medical advice providers we might say, “First heal yourselves.” Be that as it may, there is little doubt the Supreme Court could use some ethical lessons. However, as a separate and equal branch of our three-branch democratic republic, I prefer the courts remain independent even if they sometimes teeter on a fulcrum between questionable personal behavior and unquestioned legerdemain. Such cases as Dred Scott in which the one-time slave holder, Chief Justice Roger Taney who did not recuse himself, decided the Negro Dred Scott had no rights that America’s white society was bound by law to recognize come to mind.

No, Congress should not be looking for the log in the eyes of the Supreme Court but should be initiating a Constitutional amendment that would ensure America’s citizens, not a few highly partisan politicians, would have the choice as to who and for what term judges would serve. I do not know, Gentle Reader, if you have read my numerous columns on electing judges to one fairly short term. I only know for sure that Peg read them because I refused to comply with her many varied domestic demands until she did. However, if by some chance you did read them you know my preference is a truly democratic judicial selection process.

Non-partisan elections of competing, qualified judicial candidates for one 10-year term and life-time pensions are my suggestion. Advice on ethics for anyone from our Congress rings hollow.

Whose Ox?

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Intractable problems such as judicial ethics and separation of powers are often intractable because we attempt to apply an inapplicable solution to them. If we notice one of our vehicle tires with a nail in it continues to lose air no matter how many times we air it up, it is time to remove the tire and remove the nail.

The United States Supreme Court’s image is not being denigrated by CNN, MSNBC and most other news outlets because its justices and their families receive emoluments but because some groups do not like some of the decisions of some justices. Politics, not ethics is the petard that is being raised to demand Supreme Court justices decide cases the “right” way or else.

But politics, not ethics is the proper tool to address judicial ethical issues. Our Constitution already has remedies for controlling judicial behavior. Article I, Section 9 contains the Emoluments Clause and Article I of the Constitution sets forth the procedure for removing government officials for treason, bribery or other high crimes and misdemeanors. And Article III provides federal judges only retain their positions “during good behavior” and it is up to Congress what that entails.

The proper solution for changing a court’s policy decision a majority of Americans do not agree with is to change the judges, not assail their character. Some justices are championed by some segments of our society and castigated by other segments. For example, Clarence Thomas is vilified by liberals who deified Ruth Bader Ginsburg who was abhorred by conservatives. Yet both Thomas and Ginsburg, and most other justices, have accepted expensive favors from numerous groups and individuals. Such “unethical” behavior only becomes an issue when raised in the context of which president nominated the justices.

Currently America accepts without demurral that justices Roberts, Kavanaugh, Gorsuch, Coney-Barrett, Alito and Thomas are “G.O.P.”/conservatives and Brown, Kagan and Sotomayor are Democrat/liberals. These designations are not even debated except when, rarely, Roberts wanders over to just left of center. In other words, America knows each justice was selected for her or his views in a political process and by politicians but without input from the general citizenry.

America does not need to engage in attempts to control judges by imposing ethical constraints. What we need is to subject all three equal and separate branches to the will of the citizenry whose lives are defined by the politicians of all three branches. As I have been saying publicly and in print for several years, elect all judges and establish term limits for them.

The best remedy for establishing ethical behavior is to elect judges of character who will choose the harder right over the easier wrong. Each law school needs to establish a judicial track that develops competent potential judges of good character. Then each state and the federal government should define by statute the requirements to run for a judicial office that has one set term. The president must be 35 years old (Article II of the Constitution). That seems reasonable to me. I suggest a clean felony record and 10 years of regular law practice might also be good. However, we should not have committees decide who is eligible to run for a judgeship. The American electorate should have that power after a few minimal qualifications. And a non-partisan election as part of the regular election cycle should suffice.

We can solve the judicial behavior problem best by impowering all voting Americans to choose all three branches of our government. If we are going to end our current highly political judicial selection process, let’s do so by replacing it with a system based on democracy, not cronyism.

 

Undermining the Courts

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At 3:30 am on Thursday, April 20, 2023 I was watching cable news anchor Alex Wagner of MSNBC, who was analyzing the controversy involving two conflicting federal court rulings concerning the abortion drug Mifepristone. Wagner pointed out the federal district judge in Texas had been appointed by President Donald Trump. Ms. Wagner did not refer to the federal district judge in the state of Washington having been appointed by President Barack Obama. Wagner opined that these diametrically opposed court holdings and the U.S. Supreme Court’s attempts to reconcile them, “Could undermine the legitimacy of the courts.”

Naturally, Gentle Reader, your first thought is what was I doing watching television at three thirty in the morning and why would I watch MSNBC at any time? As to why I was awake, hey, I’m frequently responding to urges I never had when life was new. As to why MSNBC, I watch the news with my finger on the remote so I can attempt to outmaneuver the commercials. MSNBC happened to have the court story on instead of some offer of products guaranteed to enhance weight loss and other things, so I listened in.

It was Wagner’s views on the court system, not any exposition of Mifepristone, that piqued my attention. She said on national TV what may be a sub rosa thought with many Americans, “Why should we have confidence in the independence and reliability of our federal judges?” Are federal judges acting as Socrates demanded or are they deciding cases politically? Does a federal judge’s ruling depend more on the facts and the law or the judge’s political views and those of the president who appointed them?

In his trial before the Athenian judges, Socrates admonished his judges, “To do justice, not make a present of it.” In other words, a judge’s duty is not to repay his or her appointing politician, but:

“To hear courteously; to answer wisely; to consider soberly; and to decide impartially.”

Americans have for over 200 years supported the right of judges to be a separate and independent branch of our government. However, in our current national environment, many decisions from, especially the U.S. Supreme court, but more and more frequently also from the lower federal courts due to wide-ranging injunctions from one-person federal district judgeships, are seen by many Americans as political pronouncements.

Virtually every national debate about federal judicial decisions begins with a reference to the politics of who appointed the judge or judges and the history of the judge’s political leanings. It may be difficult to recall, but before our current turbulent social environment seldom was it alleged that, as justices Stephen Breyer, Elena Kagan and Sonia Sotomayor said in dissent to the abortion decision of Dobbs vs. Jackson, “Today the proclivities of individuals (Supreme Court Justices) rule.”

When even one third of the members of the U.S. Supreme Court publicly and in print accuse the other two thirds members of deciding cases for political reasons, it sounds an alarm about an independent judiciary. An independent judiciary is essential to maintaining our democracy. As long ago as 1835 Alexis de Tocqueville noted, “In America, practically every political question eventually becomes a judicial one.” De Tocqueville meant that Americans have confidence in the impartiality of our courts so they take their disputes to courts to be resolved.

It would be a shame if now de Tocqueville might have to conclude, “In America, practically every federal judicial question becomes a political one.” Perhaps next week, if I am still awake at 3:30 am, we might further address these volatile issues including some suggested remedies.

Our Two Branch Democracy

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Photo by Peg Redwine

Pure democratic government involves direct selection of leaders by those who are led. The United States is two thirds of a democracy. The Executive Branch is elected by popular vote every four years. The House of Representatives of the Legislative Branch is elected by popular vote every two years. The Senatorial part of the Legislative Branch is elected by popular vote in staggered parts over six years. The Executive and Legislative Branches then select all members of the federal judiciary. The American public has no direct input in the selection of the Judicial Branch.

Federal judges receive life-time appointments subject only to their own choice or, extremely rarely, impeachment. Supreme Court Justice Samuel Chase (in 1805) was the only U.S. Supreme Court justice to have articles of impeachment brought against him; he was acquitted and continued on the court. Fifteen lower federal court judges have been impeached in American history. Eight were convicted and removed from the court. Four were acquitted and three resigned. We currently have about 1,800 federal judges including 9 Supreme Court justices.

The Judicial Branch of our government is in some ways the most powerful and in every way the least democratic branch. While we have only one President, the President may serve a maximum of eight years and must be elected by popular vote. Of course, the Electoral College is the mechanism we use, but popular vote by the electorate is still the gold standard. That is, we have the right to help choose our Executives. Not so our federal judges.

In like manner, we have the right to help choose our state’s Congress people and our state’s two senators. And while there are no term limits for the Legislative Branch, if we choose, we can vote them out. Not so our federal judges.

The historical reasons for how our ideal form of a Three Equal Branch democracy became two equal branches with the Judicial Branch being outside the control of the citizens are complex and, in many ways, convoluted. For the purposes of this column, I ask for a suspension of your legitimate questions about the etiology of how we got to our current non-democratic system. I respectfully recommend an examination of the most famous and momentous U.S. Supreme Court case, Marbury v. Madison, 5 U.S. (1cranch) 137 (1803). It was the original wrongly decided case that the highly political Chief Justice John Marshall used to outfox his bitter political opponent, President Thomas Jefferson, and usurp out of whole cloth for the Supreme Court the ultimate authority to determine if an act or law was constitutional. That was the beginning of how the federal courts have placed themselves beyond the reach of the citizens and slowly but inexorably created a government that, I submit, James Madison and the other Founders would not recognize. The ideal of a living democracy based on direct citizen involvement in the selection of each of three separate and equal branches of self-government has evolved into bicameral branches of Executives and Legislators who then choose the Judicial Branch.

Most experts now believe it would take an amendment to Article III of our Constitution to return to the purity of the Founders’ vision. If so, that painful and arduous process would be preferable to the alternatives.

Judicial Proclivities

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Three of the United States Supreme Court’s own members Elena Kagan, Stephen Breyer and Sonia Sotomayor warn us the Court has appointed itself, instead of Congress or the EPA, the decision maker on climate policy. An outcome the three dissenters found frightening. See the dissenting opinion of Kagan as joined by Breyer and Sotomayor in West Virginia v. EPA decided June 30, 2022. What they meant was that the unelected Supreme Court installed the Judicial Branch as the policy maker for an issue, management of the environment, that should be within the Legislative Branch that is subject to democratic control, as the Court is not.

Most of us are unable to see the irony in our own actions. The same is true of the Supreme Court. The six-member majority of the Court couched its decision in terms of preserving policy making in Congress as opposed to unelected bureaucrats at the Environmental Protection Agency. But, according to the Dissent, what the Court did was simply replace the EPA with the Court as the ultimate decision maker on the broad, critical issues of environmental management.

In the similarly ironical decision Dobbs v. Jackson Women’s Health handed down 24 June 2022, the same majority set the U.S. Supreme Court up as the final policy maker on the volatile issue of abortion by deciding Roe v. Wade must be overturned and each state should decide the issue.

The same three dissenting justices warned in Dobbs that:

“The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. Stare decisis, this Court has often said, contributes to the actual and perceived integrity of the judicial process by ensuring that decisions are founded in the law rather than in the proclivities of individuals. Today, the proclivities of individuals rule. The Court departs from its obligation to faithfully and impartially apply the law.”

It is not the substance of either the EPA case or the abortion case that is our concern in today’s column. Those emotional issues of global warming and human reproduction are just too volatile and complicated to be adequately discussed in one short column. Instead, what I am struck by is the obtuseness of nine unelected, life-tenured people who arrogate themselves as final arbiters of issues so vital to the lives of 330 million Americans.  Perhaps the Supreme Court has finally brought in to focus that the justices are merely politicians on a micro scale. What I wish to discuss is how we might retain our three equal branches of government through a macro democratic process.

Does any rational observer of the Court deny the justices are simply politicians who wear black dresses and pretend to be apolitical? The justices are not to blame. If you, Gentle Reader, or I were placed by Presidential nomination and Senate confirmation on the Court, we would take our prejudices and “proclivities” with us. The problem lies not with the members of the Court but with the undemocratic way they are selected coupled with their life-time tenure. It is our Court and our Constitution and we should change both.

We have amended our Constitution 27 times. We should do so again. I suggest that the members of the U.S. Supreme Court and all federal judges be elected in a non-partisan election for one 10-year term. Once their term is honorably served, we should pay them their full salary for life and they should never serve as a judge again. The impeachment process should remain an option in case we make a mistake.

In summary, federal judges are no better or no worse than the rest of us. They are human, they have “proclivities”, they are politicians. We should drop the façade of “philosopher kings” and have our federal judges recognized as a full-fledged branch of our democracy as selected via a democratic process.