James M. Redwine

United States Supreme Court

Change the Court

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 On July 29, 2024, President Biden proposed that justices of the United States Supreme Court serve a maximum of eighteen years instead of “during good behavior” as Article III of the Constitution provides. On June 18, 2024 CNN Commentator Fareed Zakaria made a similar proposal. Biden and Zakaria are liberals who are upset with the Supreme Court’s current conservative majority.

In the turbulent 1950’s and 1960’s the Supreme Court was led by a liberal majority headed by Chief Justice Earl Warren. Much of America was so upset by the Court’s decisions on civil rights there were billboards on our nation’s highways calling for Warren’s impeachment.

It is not unusual for cases before the Supreme Court to cheer many and anger others. Matters end up in the Supreme Court because citizens have opposing views on hot-button issues. That’s what courts are for. It is better to go to court than go to war.

 Of course, if the public loses confidence in the justice provided by the Court, war could still result. According to Gallop polling from July, 2024, 52% of Americans disapprove of the way the United States Supreme Court is doing its job. Hence, we once again are hearing demands for “court reform”, which to the dissenters means changes that would create a court that agrees with their views.

The dissatisfaction that sways left and right with the Court’s decisions is improperly addressed to the individuals or contemporary majority. The solutions are within our constitutional republic’s power. We do not need to put up with frustration with the Court’s fallible humans; what we need is to change the way the Court is composed. And we have the power to do it. We have amended our Constitution 27 times already for such things as women getting the vote. We can amend it again to re-establish confidence in our third branch of government.

Rational minds can differ as to the details but the essence of reform is already apparent. America needs to reaffirm our commitment to our solid foundation of three equal and separate branches of our republican form of our unique democracy. First, we need term limits; I suggest that since our presidents can only serve 8 total years that Supreme Court justices be limited to 10.

Second, we need to change our method of selecting our justices. Currently only 101 Americans, out of over 330 million have any say in who serves on the Supreme Court. The single presiding president nominates a potential justice, for life, and the 100 members of the Senate “advise and consent” to the nomination. We need to involve the rest of America’s voters in these vital decisions. I suggest we develop a non-partisans competitive election where qualified candidates can be “vetted” by all of us.

I do have further suggestions, but as I have already written and published over 30 Gavel Gamut columns on the Supreme Court from 1990 to today, I’ll just make these “modest proposals” for now.

Perhaps we’ll meet again on these issues later as the complexity and importance of modifying an entire branch of our government may require more than a couple of pages from one columnist. Feel free to join in, Gentle Reader.

 

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

It Is Time

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Sunday, June 18, 2023 Fareed Zakaria on his CNN show, The Global Public Square, introduced a segment about the United States Supreme Court by stating, “The Supreme Court is supposed to be the ultimate, safeguard of our democracy, but has the Supreme Court itself become a danger to our democracy? Is the Court today acting as a defender of democracy or a threat to it?”

Fareed’s guest was Michael Waldman of the Brennan Center for Justice at New York University. Waldman’s book, How the Supreme Court Divided Our Country, sets forth a central thesis: nine unelected, life-tenured people on the Supreme Court hold too much power for too long and they have become “very, very activist and extreme in their rulings”. Waldman’s position, and mine, is that the U.S. Constitution was designed to adapt to changes in our society and it is critical that the Supreme Court change also.

Zakaria and Waldman advance the idea that the justices’ terms should be limited, Waldman suggested a one-term term of eighteen years. I have long called for term limits for all federal judges plus revamping their selection process to popular elections, not appointments that involve only the president and the senate. I think eighteen years is too long. I suggest if our elected president can only serve eight years that a ten- or twelve-year term for judges is reasonable.

In order to encourage people to run for federal judgeships it seems to me it is in the country’s best interests that once a judge has served her or his term the retired judge continue to receive all pay and benefits during their lifetime as long as they do not seek another judicial position.

Judicial offices could appear on the normal ballot as a non-partisan position as needed. There should be minimum qualifications required, such as graduation from an accredited law school, passage of a national Bar Examination, an age of at least 35, the same as the president, and a clear record as to ethical matters. As in all contested elections the relative merits of the judicial candidates could be brought out by the candidates themselves, their supporters, their opponents and the media.

Surely when our Supreme Court is being accused of “holding too much power for too long” and of being “a threat to our democracy”, it is essential we make some fundamental, Constitutional adjustments. America may not yet be on the brink of disintegrating into legal and political chaos, but when that possibility is bantered about blithely on Sunday news programs, it is time to act.

Affirmation Finally

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I wrote the first of my over 900 “Gavel Gamut” columns in 1990 at the request of my friend, Jim Kohlmeyer. Jim was the Posey County, Indiana Republican Party Chairman and the owner of the New Harmony Times newspaper (now The Posey County News owned by my friend, Dave Pearce).

Jim had recently purchased the paper and was desperate for filler. He asked me, the Democrat, elected, Posey County Circuit Court Judge, to write a column about “legal topics.” Jim did not care what I wrote. Since 1990 and every week since April of 2005 I have written about topics from local heroes to national issues as I saw fit. As those of you, Gentle Readers, will note, in several of my burnt offerings my wife, Peg, had to bear the brunt of my ramblings. However, most of “Gavel Gamut” has dealt with legal topics. A major theme has been the legal system, particularly judges. The federal courts and especially the United States Supreme Court have been the recipients of my chagrin over these thirty-two years during all of which I have served and am still serving as a judge myself. Although after thirty-eight years on the Bench as a partisan-elected judge I term-limited myself and now serve in other judicial venues, such as the Country of Georgia and the National Judicial College.

As I have written numerous times, my belief is that our American democracy is in danger from non-elected, life-tenured judges. I have stated this position frequently and I hold to it firmly.

However, even though I have often expected returning brickbats from those who champion appointing judges and granting them life-tenure, almost nobody has seemed to ever take umbrage from or stated their agreement with my position until October 3, 2022

Then, voila, along came that great journalist and philosopher, Fareed Zakaria whose excellent Sunday morning CNN show, GPS The Global Public Square, is the only national news program I find to contain news. On October 3, 2022 at 8:00 p.m. Fareed aired his special, “Supreme Power, Inside the Highest Court in the Land.”

Now, Gentle Readers, I am not claiming, although I wish I could, that Dr. Zakaria has ever heard of, much less been influenced by my analysis on any subject. However, his special clearly stated one of the greatest current dangers to our democracy is life-tenured members of the U.S. Supreme Court and the totally politicized method of their selection process.

            Let me say this about that (as President John F. Kennedy used to say), AMEN, brother Fareed!

Of Founders and Russians

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Harvard law professor Michael Klarman was the keynote speaker at the June 2019 Indiana Graduate Judges Conference. As an attendee I received a signed copy of Klarman’s book, The Framers’Coup, The Making of the United States Constitution. Gentle Reader, to give you some perspective on the exhilarating experience of a law professor’s book, the tome’s Note and Index sections run from page 633 to 865. Of course, the substance of the book contains 632 pages of which several pages thank the law students who did the grunt work. Regardless, I do recommend the book to you as an interesting and often surprising exposition of how our Constitution survived the throes of birth. As Klarman says of our pantheon of founding heroes:

“In the book I try to tell the story of the Constitution’s origins in a way that demythifies it. The men who wrote the Constitution were extremely impressive, but they were not demigods; they had interests, prejudices, and moral blind spots. They could not foresee the future, and they made mistakes.”

This is Klarman’s raison d’etre for writing the book. His admonition is that the men, and they were all white, Anglo Saxon, Christian men, who struggled for six months in Philadelphia in 1789 to create the United States were just men, not gods. Some of them owned slaves, some did not. Some were from populous states, others were not. But they were all mere mortals with virtues and defects.

The underlying message of the book is that if those men could find a way to overcome their political and philosophical divisions, we and future Americans should also be able to. For example, in our current culture wars where President Trump alleges Ukraine helped Secretary Clinton in the 2016 election and Clinton alleges Russia helped Trump and more recently both Trump and Clinton and many others are flinging arrows in all directions alleging our leaders are “foreign assets” we should just chill. If James Madison and the Federalists and Thomas Jefferson and the anti-Federalists could reach compromises, we should be able to also.

The salient issues and the thorniest were how could our Founders apportion representation among populous and less populous states, how was slavery to be addressed (or not) and could common citizens be trusted to govern themselves.

According to Klarman, as our Framers struggled to hold the Constitutional Convention together the Federalists and the anti-Federalists, “Questioned their opponents’ motives and attacked their characters, appealed to the material interests of voters, employed dirty tricks and made backroom deals when necessary.” Sound familiar?

Okay, you probably are choosing to go sort your socks rather than to hear any more from Professor Klarman or from me. But a word of caution, Gentle Reader, if I have had to experience the joys of all the almost 900 pages of Constitutional history, you may have the same opportunity in next week’s column. We might even delve into the vicissitudes of whether the United States Supreme Court is truly independent or are its decisions as politically based as those of the other two Branches

An Imbalanced Three-Legged Stool

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Why are so many people on all sides so angry about the United States Supreme Court life-time appointment? The answer may be in the question: it is an appointment and it is for life.

The true genius of the Founding Fathers was they understood power corrupts and since human beings constantly seek power it must be diffused into three branches of government. What they did not anticipate was that the Supreme Court, the Judicial Branch, would slyly usurp the power of the Executive and Legislative branches, starting with Chief Justice John Marshall and the case of Marbury versus Madison in 1803 in which the Supreme Court declared it had the power to review and invalidate or validate decisions of the other Branches.

This power of review established an inequality among the three Branches that has grown to a crisis. Where the Judicial leg of the stool has neither power of the purse nor the gun, this power of review protrudes causing an imbalance. This is exacerbated by the appointment of the justices and the manner in which the appointments are made. They are appointed for life by one person, the President, with the “advice and consent” of the Senate, i.e., one hundred more people.

Whereas the public has the right to vote for the President and each member of Congress, the public is shut out of choosing the extraordinarily powerful people in the Judicial Branch. This causes great concern for contesting groups when such personal issues as health care, police powers, control of one’s body, and distribution of tax monies may work their way from the legislative and executive bodies to the courts. For it is more true today than ever that as the visiting French philosopher and tourist Alexis de Tocqueville declared in 1835: in America, eventually every political question becomes a judicial one.

With the President, every four years we can make a change. With members of the House of Representatives, every two years the entire House can be changed and with the Senate, if we wish, in six years we can choose someone else. That is the crux of why people are so desperate to influence the choice of a Supreme Court Justice, i.e., it is not a choice made by them and it is for life.

It seems to me a rational solution is to change how we select our federal judges. Of course, I think all judges at all levels should be elected in a modified non-partisan election, but today we are just addressing the federal food fight that embarrasses and endangers us all. I suggest we put any future Supreme Court replacement on the ballot and limit their term. Of course, this will require amending the Constitution, but the Constitution has been amended many times before. Power to the People, not the politicians, is worth considering and worth the trouble it will take to make the change.