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Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman.
The Supreme Court rules the federal government.
When it comes to judges, the checks and balances that are supposed to restrain each of the three branches of the government don’t work. The Supreme Court composed of nine, unelected justices holding their positions for life has assumed virtually unlimited power.
When they seek Senate confirmation, judicial nominees declare they have no personal agenda but pledge to simply apply the law. They give the impression that the law is clear and all they must do is measure each case against its standards. They will set aside their personal leanings for the cold analysis they must make.
Although everybody knows their political philosophy and that they hold views consistent with those of the president who appointed them, they refuse to answer questions about how they see issues on the grounds that revealing their beliefs might undermine their proclaimed objectivity if they get a case to decide. That lets them get away with what everybody knows is pure fiction.
Just ask Sen. Susan Collins who wanted to learn if nominee Brett Kavanaugh accepted the court’s precedent when it decided abortion was a constitutional right. Of course, he wouldn’t simply tell her, so she was left to try to decode his veiled message. She concluded he respected the precedent. It turned out he didn’t.
Shouldn’t Congress cut out the sham and insist on real answers as a condition of confirmation?
How about Chief Justice John Roberts when he ruled for the court that Black Americans no longer needed federal assurance of their voting rights and that states could be counted on to treat them fairly. True, he recognized that the section of the Voting Rights Act he was nullifying was a major reason they had gained voting access. But enough was enough.
Immediately after that decision, four states that had been under federal supervision began making it more difficult for Black Americans to vote. And that process has continued ever since. His court majority was composed of Republican appointees; the states limiting access for Black Americans are under Republican control.
The arrogance inherent in an unchecked judiciary goes on. A lone district court judge in Amarillo, Texas decided this month that the Food and Drug Administration erred 22 years ago in approving an abortion drug. He substituted his non-expert judgment for the work of many scientists over many years. Using a process allowed by the highest court, he applied his ruling to the entire country. It was quickly appealed.
What’s the reasonable length of a congressional recess? It might seem that Congress could decide that. Instead, the Supreme Court has ruled it must be at least 10 days to qualify as the recess period mentioned in the Constitution.
These decisions are obviously not simply a matter of determining what the law is, despite what the nominees say they will do. This is legislation.
The justices rather than the Constitution have become “the supreme law of the land.” They act to make sure that the popularly elected branches, Congress and the president, don’t get carried away exercising the people’s will.
The Framers of the Constitution may have been creating an innovative new democracy, but they didn’t fully trust average people. The court, ignoring over 230 years of change, would keep it that way. But the elected branches and their voters have evolved, and the court should concede the development of democracy and back off of its paternalism.
The justices need to be accountable. If the chair of the Federal Reserve can be required to testify before Congress about the Fed’s actions and plans, the chief justice should have to explain to elected officials the decisions made by the Supreme Court. The heads of executive departments testify and even the president shows up once a year.
There’s also the matter of personal accountability. Every member of Congress faces ethics review and financial reporting. They and the presidents face voters and the media. Representatives and senators are censured and expelled. Justices do none of that.
Supreme Court justices make financial reports, but Justice Clarence Thomas has failed repeatedly to accurately do that. No one can make him report accurately or completely. One justice resigned for taking gifts far less significant than those Thomas accepted.
The justices have made themselves into untouchable demigods, and Congress has meekly agreed.
In 1803, the Supreme Court made itself the last word in the federal government. An independent judiciary is an essential element of the three-part system that can only work if each branch observes the checks and balances. Right now, the court controls many checks and operates without balances.
The Constitution gives Congress the power to make “exceptions” to the Supreme Court’s powers and to set “regulations” for it. It’s time for Congress to ensure that the court operates within the constitutional system, but does not own it.