SCOTUS Has Placed Itself Above Congress, the Constitution, and the Founders

The Court itself has been corrupted by a handful of morbidly rich “friends” whose affiliated groups are constantly bringing cases or amicus briefs to the Court. Congress needs to act...

Image by André Santana AndreMS from Pixabay

Senator Sheldon Whitehouse just filed an ethics complaint about corruption in the Supreme Court. Weirdly, he had to file it with Chief Justice John Roberts himself (this is sort of like complaining to George Santos that George Santos is corrupt) because, as Whitehouse noted in his complaint:

“I write to you in your capacity both as Chief Justice and as Chair of the Judicial Conference because, unlike every other federal court, the Supreme Court has no formal process for receiving or investigating such complaints…”

His complaint was sparked, in part, by Sam Alito (arguably the second-most corrupt justice) being recently quoted in The Wall Street Journal as saying:

“No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.”

In that, Alito is choosing to completely ignore Article III, Section 2 of the Constitution, which lays it out explicitly:

“[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

The author of the Declaration of Independence and America’s third president predicted today’s Supreme Court corruption. Congress should have been listening then; it must listen now. If Democrats can retake the House and hold the Senate and White House in 2024, they must hit the ground running in 2025 with legislation to limit the corruption and powers of the Supreme Court.

Which means they need to get started now. Here’s the backstory, and what needs to be done.

Back in 1803 in the case of Marbury v Madison, the US Supreme Court took onto itself a power not given it by the Constitution: the ability to strike down or modify laws passed by Congress and signed by the President. It’s called “judicial review.”

Thomas Jefferson was president that year and he flipped out. He bluntly expressed his concern to his old friend Judge Spencer Roane, the son-in-law of Patrick Henry and a justice of the Virginia Supreme Court:

“If this opinion be sound,” Jefferson wrote, “then indeed is our Constitution a complete felo de se [a suicide pact]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation…. 

President Jefferson continued in full fury:

“The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. …

“My construction of the Constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal….

“A judiciary independent of a king or executive alone is a good thing; but independent of the will of the nation is a solecism [a blunder], at least in a republican government.”

Today, we have a Supreme Court that has fully placed itself above Congress, which is the opposite of what the Founders and Framers intended.

As a result of that, as Jefferson warned, the Court itself has been corrupted by a handful of morbidly rich “friends” whose affiliated groups are constantly bringing cases or amicus briefs to the Court.

At the risk of sounding like an originalist, this is not what the Founders and Framers of the Constitution intended.

In 1788, when James Madison and Alexander Hamilton published a long series of newspaper articles promoting to the American people the idea that they should ratify the Constitution (today we call them The Federalist Papers), Hamilton took on the job of selling Article III, which authorized Congress to create the court system.

It included, in Section III the mandate that Congress set up the Supreme Court by defining how many justices it would have, where it with meet, what its budget would be, and what it could and could not rule on.

In that sales pitch, Hamilton, on May 28, 1788, wrote in a newspaper article we today call Federalist no. 78, that the courts, including the Supreme Court, were the weakest of the three branches created by the Constitution. After all, at that time it wasn’t envisioned that they would ever have the power to strike down laws passed by Congress.

“[T]he judiciary is beyond comparison the weakest of the three departments of power,” he wrote, adding in the same sentence that “it can never attack with success either of the other two [branches].”

He even footnoted that sentence with a quote from the famous French judge Montesquieu, who had first clearly articulated the idea of a separation of powers between governmental branches as a check and balance. Hamilton’s footnote read:

“The celebrated Montesquieu, speaking of them, says: ‘Of the three powers above mentioned, the judiciary is next to nothing.’”

He explained why the Court’s judges had lifetime appointments and the judiciary had its own section of the Constitution, writing in the Federalist, no. 78:

“[F]rom the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches.”

The lifetime appointments and Montesquieu’s “separation of powers” would insulate the Court from being “overpowered, awed, or influenced” by the president or Congress.

But some Americans (and many of the newspapers of the day) weren’t convinced; the idea of lifetime appointments and being a branch of government independent from the other two sounded too much like Supreme Court justices could seize enough power to resemble the European monarchies that the colonists had just fought a revolutionary war against.

“What would prevent the Supreme Court from rising up and taking over the country?” they asked. “You’re concentrating too much power in one branch!” others essentially said.

So, a month later, in June 1788, Hamilton published what is now known as Federalist 81, directly answering their objections, again arguing that the Supreme Court couldn’t make laws and couldn’t strike down laws.

First, he cited (rather accurately) the objections to the Supreme Court he was pushing, noting that opponents of the Constitution were concerned that Supreme Court justices — dangerously! — might interpret the Constitution in a way of their own personal or partisan choosing.

“The arguments,” Hamilton wrote, “or rather suggestions, upon which this charge is founded, are to this effect:

“The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mold them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body. This is as unprecedented as it is dangerous.” (Emphasis Hamilton’s.)

Having set up the objections/concerns, he then answered those doubters in the next paragraph:

“In the first place, there is not a syllable in the plan under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State.” (Emphasis his.)

He also pointed out, in the next paragraph, that even if the Court were to rule on the meaning of a poorly written law (or even corruptly distort a law’s meaning) in deciding a case, the legislature could simply write a new law clarifying what they meant and the new law would apply for the future:

“A legislature, without exceeding its province . . . may prescribe a new rule for future cases.”

Still, people were concerned that the Court would have too much power. What if they started striking down laws passed by Congress and signed by the president, both elected by We the People, while the justices were merely appointed?

Hamilton’s answer in Federalist no. 81 was that the Constitution itself prevented such an abuse of power because the Supreme Court was explicitly subordinate to Congress.

“We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur [arguments between the states, and treaties with other nations].

“In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, ‘with such EXCEPTIONS and under such REGULATIONS as the Congress shall make.’” (Emphasis his.)

If that wasn’t clear enough, in the next sentence Hamilton essentially repeated himself.

“To avoid all inconveniencies, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction both as to law and FACT, and that this jurisdiction shall be subject to such EXCEPTIONS and regulations as the national legislature may prescribe. This will enable the [rest of the] government to modify it in such a manner as will best answer the ends of public justice and security. (Emphasis his.)

He similarly noted in the Federalist, no. 78, although he hedged slightly:

“Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”

Thus, right up until 1803, nobody was really sure how much power the Supreme Court had, but everybody was pretty sure it was very, very limited.

But in the past century, the Court has, in many ways, become the most powerful branch of the federal government and they’re neither elected nor subject to any meaningful oversight from Congress, the president, or We the People.

They behave like they think they’re royalty, between lifetime appointments and the unwillingness or inability of Congress to control or “regulate” them. This is both dangerous and wrong. 

And it’s led to an arrogance and corruption among the Republican justices on the Court that threatens the rule of law in America.

No other federal court in the nation, for example, would allow a defendant in a case before them to fly a judge on a private Gulfstream luxury jet to a luxury hunting retreat in Louisiana and then, a week later, watch as that judge rules in that defendant’s favor.  

But Supreme Court Justice Antonin Scalia did exactly that when Dick Cheney was sued for allegedly lying about his secret “energy group” that was planning the seizure and sale of Iraq’s oil fields as he and Bush lied us into the war that opened those oil fields up to exploitation.

No other federal court would allow a judge to give a speech before a group that was funding a case before them and then rule in favor of that group’s openly stated goal, but that’s exactly what Neal Gorsuch did when he addressed a group funded by the Bradley Foundation that was helping finance the Janus v AFSCME case that gutted union protections for government workers based on constitutional interpretation.

No other federal court would allow a judge to swear revenge against a particular nonprofit corporation (in this case the Democratic Party), saying in his confirmation hearings that, “What goes around comes around,” and then rule in cases directly affecting that organization (like gutting voting rights by citing the Constitution) but Brett Kavanaugh did just that.

No other federal court would allow a judge to rule on a case where he owned a half-million dollars’ worth of stock in the company presenting amicus arguments before the court — it’s outright illegal in many states — but John Roberts did just that in the ABC v Aereo case.  As did Roberts, Breyer, and Alito in 25 of 37 other cases where they owned stock, according to the good-government group Fix The Court.

No other federal court would allow a judge’s wife to openly interact with and advocate for the interests of dozens of litigants before the court over decades, and take nearly a million dollars from a group regularly helping bring cases before his court, but Clarence Thomas and his wife have done both, as revealed in a shocking New York Times profile.

And now the Court has even gutted the EPA — the agency Justice Gorsuch’s mother infamously ran into the ground before resigning in disgrace during the Reagan administration — using Gorsuch’s own bullshit “textualist” interpretation of the Constitution to go after the agency on behalf of a fossil fuel industry that is actively killing our planet to make money.

In addition, these Republican appointees are openly shooting down Democratic efforts to fight gerrymandered maps while supporting GOP efforts to impose them on states. And don’t get me started on the Republicans on the Court legalizing voter-roll purges in 2018, leading to over 20 million people purged nationally in the five years since.

So, today we face two crises involving the Supreme Court.

The first is that they’ve taken on powers not granted them by Congress or the Constitution in asserting the absolute power of judicial review and applying it to every single legislative act that Republicans object to, from voting rights to environmental issues to the enforcement of civil rights.

Given that it’s unlikely Congress will take that power away any day soon (they’ve had it since 1803), Congress can at least regulate it.

For example, the Supreme Courts of Belgium, France, and Italy can only made a judicial review determination on constitutionality when they rule unanimously. Those three countries’ Courts work this way by law and those of Germany and Spain do so by tradition. It has served those nations well, stripping politics and partisanship out of their judicial systems.

Congress could mandate the same for our Supreme Court with a simple majority vote, if they could get 50 Democrats to overcome a filibuster.

There would be no more 6-3 or 5-4 decisions with the Republican-appointees lined up on one side and Democratic-appointees on the other side. Every decision that becomes law based on the Constitution would be 9-0.

The Court would still do what the Framers thought was its main function — to be the final court of appeals — with simple majority decisions. Deciding whether Trump raped E. Jean Carroll, which company hurt another company, that sort of thing. Through the 18th and 19th centuries, that was well over 90 percent of what the Court did.

Today, however, in their rush to become the most powerful of the three branches, Republicans on the Court have been taking most of their cases as Constitutional questions, gutting or re-writing laws passed by Congress. That needs to be dialed back, and requiring a majority is a great way to do it.

The second crisis is the corruption of specific individuals on the Court. Thomas’ and Alito’s acceptance of lavish gifts from billionaires and partisan organizations is well known, but Barrett has been ruling on cases involving her father’s fossil fuel industry, Roberts’ wife has taken over $10 million from law firms which sometimes have business before the Court, and Gorsuch got bailed out with a shady land deal when he was appointed to the bench.

The FBI received thousands of tips about bad or illegal behavior by Kavanaugh during his confirmation hearings, but was instructed by Trump’s DOJ not to investigate almost all of them.

Since impeachment of any of them will be blocked by Republicans in Congress (it requires a 2/3rds vote in the Senate), the best current alternative is to expand the Court with legislation passed by a simple majority vote.

And there’s no shortage of precedent for doing that.

During the Founding Generation, after he lost the brutal “Revolution of 1800” election, John Adams and his Federalists, during the lame duck session, passed the Judiciary Act of 1801 that dropped the number of justices on the Supreme Court from six to five to deny incoming President Thomas Jefferson an appointee.

President Jefferson and his victorious Democratic Republicans in Congress instead increased the size of the Supreme Court by two, from five up to seven justices, to rebalance the federal judiciary that Adams had packed with right-wing Federalists on his way out of office.

In 1863 Abraham Lincoln wanted to get a solid vote on the Court against slavery, so he and his Republican colleagues who controlled the Senate and the House increased the number of Circuit Courts and, by extension, the number of Supreme Court justices all the way up to 10.

Two years later, when Lincoln was assassinated and slaveholder Andrew Johnson became president, Congress reduced the size of the Court to seven justices specifically to deny Johnson an opportunity to appoint anybody to the Court.

After Johnson left office, Republican President Ulysses Grant oversaw Congress increasing the size of the Supreme Court back up to nine.

During times of national crisis, changing the composition of the Court by changing the number of justices has been done repeatedly. It’s nothing new, or even that unusual or controversial. Court packing and unpacking have a long and well-accepted history in America.

Mitch McConnell spent six years packing the federal courts with his GOP-friendly judges, and, as a result, the nation is calling out for rebalancing and re-regulation of the Court and its out-of-control power grabs.

Congress needs to prepare to act on both.