James M. Redwine

U.S. Supreme Court

♪ All The Grass Is Green ♪

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Photo by Peg Redwine

I like brown grass. It matches the unfallen brown leaves I don’t have to rake and the brown stagnant water in the pond that hides my fish from the ravenous blue heron. Also, brown grass does not engender chiggers. Ah, chiggers, Mother Nature’s reminder that we humans are, in fact, at the top of the insect world’s food pyramid. Here’s how the internet waxes eloquent about chiggers:

“They bite their human host (who invited them?) and by embedding their mouthparts into the skin

cause intense irritation with intense itching.” Ugh!

The omniscient internet says chiggers prosper in grasslands, like the Osage County, Oklahoma prairie, and are most numerous in early summer when grass is heaviest; you know, like now! I have been doing my own field work on chiggers since the mowing season has returned. I can attest that for once the internet is correct; chiggers proliferate in tall green grasses.

My ankles still display chigger bites from those halcyon childhood summer days when I would gayly traipse through the green prairie grasses in short pants and bare feet while the chiggers were rejoicing at the opportunity to embed their heads permanently into my skin and scar me physically and mentally for eternity. Surely someone should have kept me out of tall green grass for the first ten years of my life and surely I should not be communicating with chiggers now as beautiful dry brown grass turns into tall green chigger heaven.

Unfortunately, I cannot convince Peg our yard looks just fine with waving green stems interspersed with golden dandelions. She insists that I do battle with the vegetation that is being protected by battalions of chiggers as ferocious as Ukrainian freedom fighters. I don’t get it. Peg plants countless flowers and even decorative grasses while she insists I attack our yard with a smoking, noisy grass decapitating Kubota dragon. No wonder the chiggers launch counter attacks. I say let bygones be bygones. I’ll forgive those childhood chiggers if today’s marauders will leave me alone. But how can they if Peg demands I destroy their homes?

I say the blames for my chigger discomfort falls squarely upon Peg’s pathological need to impress the neighbors. Neighbors? We live in the country! Our cabin is a quarter of a mile from the main county road. Nobody ever sees our yard unless you count FedEx and UPS drivers who deliver Peg’s ever regenerating plants for her to plant and the chiggers to nest in. If I did not mow the yard all summer no one would see or care; well, except Peg of course.

But the real problem is not Peg. The real problem is the United States government that can send out trillions of borrowed dollars to encourage people not to work and trillions of borrowed dollars to help Ukrainians blow up Russian tanks, planes and ships but cannot spend a Depression Era dime to eliminate chiggers. It is time we returned to those thrilling days of yesteryear when instead of spreading armaments we spread insect killer, not DDT, of course.

Let’s hear it for dead chiggers and live, itch-free people. That’s a better campaign slogan than “Ban the U.S. Supreme Court” or “Raise a statue to Sammy Alito.” Well, excuse me a moment. I’ve got to go get Peg to type up this column for the paper and I can see out the window she is gleefully planting even more insect habitat.

Political Winds Should Shift

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President Biden has promised to nominate an African American woman to replace retiring Associate Supreme Court Justice Stephen Breyer. The U.S. Supreme Court is generally accepted as having a liberal wing: Breyer, Sonia Sotomayor and Elena Kagan; and a conservative wing, Clarence Thomas, Amy Coney Barrett, Samuel Alito and Neil Gorsuch. Chief Justice John Roberts and Brett Kavanaugh vacillate but tend toward the conservative side.

The liberals were nominated by liberal Democrat presidents and the conservatives and semi-conservatives were nominated by conservative Republican presidents. Each American president was elected by majority popular vote and the Electoral College. The philosophies and political positions of each president were well known to the electorate beforehand via contested campaigns. Most voters are aware the members of the Supreme Court, and all other federal judges, are nominated by whoever the president in office is whenever there is a vacancy on a federal court or when a newly created court needs a judge.

But whereas our presidents, due to the 22nd Amendment to the Constitution, may serve only two, four-year terms, Article III section one of the Constitution provides federal judges … “[s]hall hold office during good behavior.” Although it has never been tested, this provision has normally been viewed as providing life-time tenure for federal judges. And since the U.S. Supreme Court under the guidance of Chief Justice John Marshall in 1803 took for itself the power to determine what our Constitution means, if the issue arises the members of the Supreme Court will themselves decide if they should have life-time jobs. See Marbury vs. Madison (1803), 5 U.S. 137.

Therefore, the Constitution might have to be amended to set term limits for federal judges. However, we have amended our founding document twenty-seven times already so we could do so again. An amendment takes a vote by 2/3 of each body of Congress and ratification by 3/4 of the states. That is how women finally got the right to vote and we all got numerous other rights such as Freedom of Speech.

The debate over whether Supreme Court justices are political is vacuous. They are chosen via a political process. They represent a third branch of our political system. We casually identify the justices as liberals or conservative or swing votes. The Supreme Court is a political creation and remains a political part of our democracy, by design. The issue we should be discussing is what is good for America and the answer is limited terms for federal judges. If a president can be elected because of her or his policies then replaced no later than eight years later by someone with different views and a different background, so should courts have their particular perspectives and prejudices evolve every few years. We should not have to wait for Mother Nature to get new and diverse views from justices and other federal judges.

Judges, just like every other human, have prejudices and political leanings. That is not only to be expected but should be celebrated in our democracy. The fact, and it is a fact, that every judge brings her or his background to the Bench should not be news. However, America needs to protect itself from entrenched partisan views being cast in biological stone. A ten-year term for all federal judges is 25% longer than a president’s maximum allotment. Ten years is plenty and if we provide a life-time pension for ex-judges as is already set out in 28 U.S. Code §294 we should have no problem getting qualified judges to serve.

A Limited Tenure

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President Biden has announced his intention to nominate an African American woman for the Senate to advise and consent for service on the United States Supreme Court. At the risk of being embroiled in a Whoopi Goldberg “Jewish is not a race issue type of discussion”, I suggest neither race nor gender is the issue for whomever is nominated.  Politics is always what membership on the Supreme Court is about.

From the highly political John Marshall (years on Court 1801-1835) to the highly political Ruth Bader Ginsberg (years on Court 1998-2020) the justices of the U.S. Supreme Court have often worn their politics on the sleeves of their robes. Marshall was nominated by President John Adams. Ginsberg was nominated by President Bill Clinton. Americans who agreed with Adams’ political positions generally agreed with Marshall’s decisions and those who leaned in Clinton’s policy directions championed Ginsberg’s. We should not be surprised if a president nominates someone whose political tendencies match the president’s. It is not a justice’s race or gender that matters; it is their philosophies.

Sometimes when a president, liberal or conservative, chooses a justice, that justice turns out on the opposite end from the president’s philosophy. President Eisenhower, a conservative, chose Earl Warren (years on Court 1953-1969) who led a liberal revolution from his position as Chief Justice. And President George H.W. Bush nominated the African American Clarence Thomas to the Bench; Black Clarence Thomas may be to the right of former slave owner Roger Brooke Taney (years on Court 1836-1864) who decided the Dred Scott case. Although it is not likely Thomas would have agreed with that particular decision.

Supreme Court justices are just like the rest of us. We carry our beliefs and prejudices throughout our lives. They change from time to time and sometimes we can overcome them. But the U.S. Supreme Court is just another political branch of our three-branch political democracy. Politicians are placed on the Court by politicians that we elect. As Plato might have said, “Only the naïve believe otherwise.”

Instead of our long-time national self-delusion that the Supreme Court is not a political force, we should acknowledge that the justices are just humans and accept reality. The best we can hope for is term limits instead of a life-time appointment. I suggest one ten-year term would be about right.

Football vs. Politics

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Democracy is messy but usually bloodless. Football is sweaty and sometimes painful. Football teams choose representative colors such as black and orange or cream and crimson. American politics are red versus blue. Football teams are led by coaches and financed by taxpayers or fat cats. Political parties are led by politicians and financed by drips and drabs via the internet or fat cats. Football teams have a few stars supported by several Sherpas. I was happy to be one of the Sherpas on the Pawhuska, Oklahoma high school Huskies football team a while ago and enjoyed every minute of it, except for wind sprints of course. I am still enjoying supporting the Huskies team which is undefeated and on their way to what I hope will be Pawhuska’s first state championship in football.

Political parties have a few stars supported by, usually, faceless minions. Football teams have one mission, to win, whoever the opponent is. Political parties believe their mission is to provide better government than competing political parties would provide. I will leave it up to you, Gentle Reader, if you believe any political party manages to achieve this goal.

Both football teams and political parties are governed by rules of procedure and conduct. With football teams a conference sets the standards and with political parties governments from the local level on up to the top have a hand in determining policy and ultimate victory. Football games are controlled by officials on the field who can enforce the rules. Their rulings are immediate and not subject to appeal but some can be reviewed. Albeit the final ruling, in effect, is made by the same people who made the initial one. Political races are governed by laws and can be subject to recount, review, repeal and reversal. Football fans sometimes must just grimace and bear a referee’s egregious error, such as giving one team an extra down as in the 1990 Colorado v. Missouri game. Of course, the problem with any attempted remedy in football is it would be impossible to completely and fairly recreate the original game circumstance. On the other hand there is the benefit that, other than endless conversations over beer, the calls at football games are final. But political races such as Bush v. Gore in 2000 may end up in the U.S. Supreme Court and may never be universally accepted as final.

As for me, I am currently marveling how my alma mater, Indiana University, can be undefeated in football after many years of wandering in the football wilderness. This column was written before Michigan v. I.U. upcoming on November 7, 2020, so I am hopeful it remains valid when you read this. And I am chagrined that Oklahoma State University where I started college could have lost to Texas last Saturday. I want a recount! I know I personally saw several blown calls that might have changed the score of the Cowboy game.

Regardless, what I have decided after suffering through the entire 2020 political season and cheering (or moaning) my way along the football season is that the temporary pains that I experienced playing football pale in the excruciation caused by the clanging brass of competing political parties and noxious news anchors. I am thankful for football and am past caring about the motes in the eyes of those who do not see eye to eye with me on politics.

 

Legal Slight of Hand

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After last week’s scintillating column on Constitutional Law I know you are eagerly awaiting promised round two on politics and the United States Supreme Court. Of course, America’s judiciary eschews any notion that court outcomes are sometimes a product of the political views of the judge or judges who decide the cases. At the National Judicial College where I have served as a part-time faculty member since 1995 one of the guiding principles is the effort to have completely impartial judging of all cases. That is a proper goal. However, is that goal always achieved? Let’s take a look behind the black robes of history starting with America’s most famous case, Marbury v. Madison, decided in 1803 a mere sixteen years after the end of the Constitutional Convention that occurred on September 17, 1787.

You may recall that last week we had sought guidance on understanding the U.S. Constitution from law professor Michael Klarman who spoke to the Indiana Graduate Judges Seminar in French Lick, Indiana in June 2019. In his book The Framers’ Coup, The Making of the United States Constitution, Professor Klarman gave an in-depth analysis of the political warfare that produced our Constitution. A similar phenomenon occurred when the fourth Chief Justice of the Supreme Court, John Marshall, blatantly grabbed for the U.S. Supreme Court the immense power to declare whether a particular law was constitutional. Marshall deftly, and unethically, used the virulent hatred between those early Americans who favored a strong central government, the Federalists, and the anti-Federalists who preferred a more citizen-centered national government. John Adams was our second president and he was one of the strongest proponents of a strong central government. Adams was defeated in an election by our third president Thomas Jefferson in a bitterly fought campaign. John Marshall served as Adams’ Secretary of State and Marshall and Jefferson despised one another. Just before Adams’ term as president ran out he appointed John Marshall to be Chief Justice of the U.S. Supreme Court. Marshall was succeeded as Secretary of State by James Madison who, incidentally, later became our fourth president.

Just before John Adams left office he also appointed numerous judges and justices of the peace as a sharp stick in the eye of the incoming president Thomas Jefferson. William Marbury, a wealthy businessman and vocal opponent of Jefferson, was one of Adams’ justice of the peace appointees. While Secretary of State, John Marshall had the duty of signing Marbury’s certificate of appointment and delivering it to Congress. Marshall failed to get that done and the task was left to new Secretary of State James Madison. But President Jefferson, who was angry at John Adams for the last minute appointments, ordered Madison to not deliver Marbury’s certificate. Marbury then filed a law suit in the Supreme Court seeking to have the Court order Madison to give Marbury the certificate of appointment.

If all this intrigue seems rather petty and even perhaps reminiscent of our current political climate involving nasty actions on all sides, well, the pettiness turned out to have a momentous affect on every court case in America after 1803. The squabble may have resembled a tempest in a teapot but Chief Justice John Marshall’s highly political decision in the case resulted in a federal judiciary of immense power, a power not contemplated by many of our Founders and Framers of our Constitution.

Because of his earlier direct connection to Marbury’s appointment John Marshall should have recused himself from the case and should have had no part in it. However, Marshall seized upon Thomas Jefferson’s hatred of John Adams to trade what Jefferson wanted, that is to prevent Adams’ last minute appointments, for a huge leap toward a strong centralized government where the Judicial Branch would have power over decisions of both the Legislative and Executive Branches’ decisions.

What John Marshall and two more members of the then five member Supreme Court decided was that the legislative act that purported to give jurisdiction over cases such as the one brought by Marbury violated the Constitution therefore the Supreme Court had no authority to order Madison to give Marbury his certificate. It might appear to have been a win for Jefferson over Adams, but it was the ultimate Pyrrhic victory as Marshall and all future courts used it as a nuclear weapon in the war between the Federalists and anti-Federalists. Supreme power over what the Constitution meant has resided in the Supreme Court ever since 1803.

For example, in Dred Scott v. Sandford (1857) Chief Justice Roger Taney, a former slave owner, and the U.S. Supreme Court ruled Negro slaves had no rights that the Constitution was bound to protect. Then in George Bush v. Al Gore (2000) a bitterly divided court led by Chief Justice William Rehnquist who had been appointed by Republican President Richard Nixon to be an associate justice then by Republican President Ronald Reagan to be Chief Justice handed the presidential election to Republican George Bush.

So, as America’s judiciary proclaims it must remain independent from outside influences and look only to the law and the facts, it might appear to some cynics that the blindfold often slips. Anyway, I am certain you probably feel the same sense of relief in finishing this column that I did in finishing law school and Professor Klarman’s book. On the bright side however, the rest of your day is bound to get better.

Life Sentences

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When I was an undergraduate at Indiana University I wavered between majoring in English or Psychology. I ultimately concluded a life spent seeking answers to life’s mysteries from mice running mazes held less promise than one trying to find wisdom hidden in the words of pundits. Over the years since college I have often questioned my choice. The current hollow clanging of brass over Judge Brett Kavanaugh and Dr. Christine Blasey-Ford is only the most recent struggle of yin and yang between my two choices.

Attempted rape is a terrible crime and a false accusation of attempted rape is a terrible tragedy. Both can result in a life sentence of anger, fear, frustration and loss of control. And loss of personal control is the true source of the pain caused by either circumstance. Psychologists have cautioned parents for years to avoid pinning a child down. Such behavior can result in lifelong fear and angst.

And it does not take a psychiatrist to explain how being falsely accused can permanently damage a person. Most humans have been or will be falsely accused of something and can relate to the frustration of trying to disprove a negative. Such an unfortunate circumstance is made worse the greater the false accusation is spread. Of course, it is just as debilitating to be injured and to have one’s complaint ignored or disbelieved.

Unfortunately, Dr. Blasey-Ford and Judge Kavanaugh have become casualties of people who have convinced themselves that the greater good of controlling the U.S. Supreme Court overcomes any concern about destroying lives along the way. Blasey-Ford and Kavanaugh are just two white mice trapped in a maze of self-righteousness. We have seen this experiment before and will surely see it again.