FULL COURT PRESSED

Mark I. Jacobson 'The Year of My Life: reminiscences and rants: Politics' -- Published in 2016 Available for purchase on Amazon

The GOP in the final stages of the POTUS selection process. The party is in disarray and the candidates are sniping at each other like five-year-olds on a school playground. Republicans are trying to get back to their core values as a party, but extremists within the party are derailing every effort. Political debates are beginning to look like Jerry Springer shouting matches. The only saving grace in this whole process is that the party’s rank and file is reveling in this departure from an otherwise boring election process.

Then, the worst thing that could possibly happen to them actually happens. A leading advocate of the GOP’s intertwined political and religious beliefs, ups and dies on them. To make matters worse, he happens to be on the Supreme Court of the United States. I mean, he had the job for life! As a party, they hoped that the life part would last beyond the current presidential election cycle. But, alas, such is life.

To be fair, I could have just as easily chosen a justice affiliated with the other side of the aisle because the degree of political influence is interchangeable; but fortunately (or unfortunately, depending on your political point of view) none of them have died recently. So let’s take a closer look at the Supreme Court justice in question.

His name was Antonin Gregory Scalia. He was the only child of an Ellis Island immigrant father and a first generation Italian American mother. He was a good student who went from a Jesuit military school to graduating valedictorian and summa cum laude from Georgetown University. In 1986, then President Ronald Reagan nominated the former general counsel to former President Richard Nixon to the U.S. Supreme Court. He was deeply religious and extremely conservative in his political thinking.

As a Supreme Court justice, he was a strict constitutionalist. To put it simply, that means he believed that the founding fathers, who ratified the Constitution, had the uncanny ability to write a document that would never become societally outdated. Actually, it has more to do with how the Constitution is interpreted, rather than how it’s written. To a strict constitutionalist, you can add amendments in order to address societal changes, but you can’t interpret the Constitution in any way that would accommodate societal changes.

Let me choose a constitutional amendment as an example. Everyone knows the Second Amendment to the Constitution, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." This amendment is actually made up of two parts. The first part is “A well regulated Militia, being necessary to the security of a free State….” You see, this was written before we had a standing army. We were basically a bunch of reservists who grabbed a gun when there was a threat to life, liberty, and the pursuit of happiness. Eventually, we built a standing army and no longer needed a well-regulated militia. The second part of the amendment is “…the right of the people to keep and bear Arms, shall not be infringed." The idea was that if there was any threat to life, liberty, and the pursuit of happiness; the men folk would be able to grab guns that they kept in their homes and immediately form a well-regulated militia.

Strict constitutionalists believe that you should never interpret the constitution in a way that would remove any right that has been given to you by the Constitution. As with most things, that’s open to interpretation. My interpretation of the Second Amendment is that you have the right to own a gun if you’re part of a well-regulated militia. But a strict constitutionalist focuses more on the second part of the amendment stating that a person has a right to own a gun.

When this came before SCOTUS, of which Justice Scalia was a part, the justices ruled that the Constitution gave every American the right to own a gun. It was a majority ruling of a Republican controlled Supreme Court. Here’s where I have a problem with any political control of SCOTUS. The Supreme Court of the United States is supposed to be an impartial legal body, but that rarely seems to be the case. We have more guns than people in this country. We have the highest rate of firearms related deaths and injuries in the world. And yet, a Republican controlled Supreme Court opted for political dogma over impartiality. I’m not saying that a Supreme Court controlled by Democrats would have been any more impartial. I’m pretty sure that it would have been just as partial to a liberal point of view. What I am saying is that a society that has moved from muskets to assault rifles needs to be more flexible in its judicial decisions, whichever political party is in charge.

We are already seeing instances where society fails to keep up with technology. The Constitution of the United States will continue to be challenged. We need to ensure that when these challenges arise our Supreme Court justices do what’s right for the country and not what’s right for their respective political parties. But let’s get back to reality and the current Supreme Court dilemma; what to do when a justice dies.

So now the GOP has lost a leading political advocate and a powerful opponent of a great deal of liberal legislation. And as if that’s not enough, the POTUS that they’ve been fighting with for the last seven years has the power to nominate a more liberal thinking justice and change the entire political balance of the Supreme Court.

There’s plenty of time to nominate a new Supreme Court justice. Normally, that wouldn’t be a problem. But this isn’t a normal time in political history. From a Republican point of view, with a little bit of luck, they could take back the White House. If that happens, there would be a Republican controlled Congress and White House, at least for a couple of years. But that would be enough time to ensure a Republican nominee and a GOP majority in the Supreme Court for the foreseeable future. And if Republicans are really lucky, the next opening would be from the other side. Hey, I’m not being morbid. Supreme Court justices don’t have to die, they can retire.

Of course, there is always the possibility that the Democrats will hold on to the White House. In that case, a liberal Supreme Court justice will be appointed and the balance of power will shift. This shifting of political power isn’t what the founding fathers envisioned for SCOTUS. When the country was coming together, no one even considered that any of the three branches of government could corrupt the Constitution. They were building a framework that would enable the new American society to function. They thought that they had addressed all the problems that might arise and, for the times that they lived in, they had.

But they never could have foreseen how the power of the people would transform into the power of the party. And therein lies the problem with the Supreme Court of the United States. The justices no longer leave their political and religious beliefs at the entrance to the most hallowed judicial chamber in the country. Let’s take look at a sample of recent Supreme Court decisions.

Employee Paid Contraceptives: The Supreme Court ruled in favor of Hobby Lobby. This case focused on whether a Christian owned and operated company should be forced to pay for contraceptives for its employees, if those employees are insured under the Affordable Care Act. The corporation claimed that the ACA provision infringed on their religious liberty. This was a win for the pro-life, religious right-wing of the Republican Party. In case you’re wondering if this is a direct violation of the concept of separation of church and state that is mentioned in the Constitution of the United States, it isn’t. You see, the Constitution makes no mention of a separation of church and state. The Constitution only forbids the government from sponsoring a religion or compelling an American citizen to join a religion. The vote was 5-4 in favor of the Republican majority.

The Confederate Flag and Freedom of Speech: This case focused on whether Texas could reject specialty license plates bearing the Confederate battle flag. The court ruled, in a 5-4 decision, that Texas could the reject those license plates. It’s interesting to note that the four Democrats on the court were joined by Republican Clarence Thomas, an African-American. It’s obvious that, when faced with a conflict between his personal and political beliefs, Thomas chose the former.

Race and Redistricting: This case focused on whether the Republican controlled Alabama State Legislature had redistricted high concentrations of black voters in some of its voting districts. The justices ruled that it had engaged in “racial gerrymandering.” The vote was 5-4 in favor of the Democrats. The four Democrats were joined by Justice Kennedy.

Housing Discrimination: A Texas group claimed that their low-income housing vouchers were being rejected by landlords in white suburban areas because they were not required to accept the vouchers unless they accepted Federal tax credits. This case focused on whether a disproportionate number of federal low-income tax credits were being disseminated to landlords in minority neighborhoods. In a 5-4 decision, the court ruled that this was happening. The four Democrats were joined by Justice Kennedy.

Pollution Limits: This case focused on whether or not the Environmental Protection Agency had violated the clean air act. The court ruled that the EPA had failed to do a cost benefit analysis before setting stricter limits on pollutants from power plants. The vote was 5-4 in favor of Republicans.

Same-Sex Marriage: The court ruled that same-sex couples can enjoy the same right to marry as heterosexual couples, anywhere in the United States. The vote was 5-4 in favor of the Democrats. The four Democrats were joined by Justice Kennedy.

There is an interesting aside to several of these Supreme Court decisions. I noticed that Justice Anthony Kennedy broke ranks with his fellow Republican justices on more than one occasion. Those occasions resulted in 5-4 votes in favor of the other side. I decided to take a more in-depth look at his background and found something that may help to explain this phenomenon.

Kennedy was nominated by President Ronald Reagan on November 30, 1987. Kennedy was confirmed by the Senate on February 3, 1988. At that time of his confirmation, there was a Republican president and a U.S. Senate controlled by Democrats. The confirmation vote was 97-0. One more thing, the confirmation of Justice Kennedy came nine months before a presidential election. I’m willing to bet that this moment in time, when politicians chose to do what was best for the country, has become indelibly etched in Justice Kennedy’s memory. I guess there are times when the scales of justice really are politically blind.

Although the justices are evenly matched at the moment, that won’t last for long. At this point, I should tell you that I don’t have a PhD in American history or constitutional law. What I’m about to say is only an opinion and I welcome any comments to the contrary. In my opinion, the founding fathers created a deeply flawed judicial branch. Here’s my idea of what would have worked better.

I think that the current, but temporary configuration of the Supreme Court works much better. We have an equal number of liberal and conservative justices. You see, the founding fathers failed to realize that it’s impossible to completely turn off a human beings belief system. Our beliefs, whether political or religious, become hardwired over time. Even if we had robot Supreme Court justices with artificial intelligence, it would be impossible to ensure that they wouldn’t “learn” our human belief system if given enough time. The founding fathers believed that, in the event of a deadlock, a ninth justice was the best solution. I believe that a better solution would have been to embrace party politics and require four members of each party be appointed to the Supreme Court.

So how would we overcome a judicial stalemate? My vision of SCOTUS would create a “ninth justice” comprised of the electorate. Once or twice a year, depending on the judicial workload, the voters would decide the outcome of any judicial decisions that were hopelessly deadlocked. There would be no campaigning or political party persuasion. The eight Supreme Court justices would submit two opposing conclusions for each case, directly to the American voters. In order to ensure fairness, each conclusion would be submitted to the opposing quartet of judges for analysis and editing until both sides agreed on the wording. The wording of the conclusions would be written in plain English and absent of any legalese. In the unlikely event that voting ended in a tie, the case in question would be referred down to the district court for adjudication. The decision of that court would be final.

In fact, let’s have some fun by trying my system out on an actual Supreme Court ruling. Recently, the eight remaining Supreme Court justices ruled on a case brought by the Obama Administration. In November of 2014, President Obama issued an executive order that gave temporary legal status, and an indefinite reprieve from deportation, to millions of illegal immigrants. It applied to undocumented parents of U.S. citizens and permanent residents who had lived here for at least five years. It also allowed immigrants, who arrived as children and are under 30, to apply for a deportation deferral if they are living here legally. There’s more, but that was the core of the argument. If my system actually came into being, there would be much more information.

Congressional Republicans claimed that Obama didn’t have the authority to delay the deportation of this many immigrants without legislation. A lower court blocked the executive order. The administration appealed to the Supreme Court. SCOTUS split straight down party lines; the four Democrats disagreed with the lower court, while the four Republicans affirmed the court’s ruling. The deadlock allowed the lower court’s ruling to stand. If you were the “ninth justice,” how would you rule? Let me hear from you. The prologue of this book lists several ways to reach me.

So would my “ninth justice” idea ensure that the Supreme Court of the United States better represented the will of the people? Here’s something to think about before you answer. A majority of voters, whatever their politics, believe that politicians become detached from the people who elect them to political office. For the most part, they aim their frustrations at the executive and congressional branches of government. The judicial branch of government is largely overlooked because, for the most part, the justices operate behind closed doors and with very little fanfare.

In all honesty, it would be almost impossible to apply the same voting system to the other two branches of government. For one thing, the unilateral powers of the president are limited and, in most cases, only temporary. Whether or not you believe that a large percentage of congressional output is political posturing; the fact remains that the sheer workload of elected officials and their staffs would make a system such as I’ve described, completely unworkable.

But the Supreme Court is the only branch of government in which the electorate has absolutely no say in the matter. Wouldn’t it be nice if we could change that? The ramifications of Supreme Court decisions can last over many decades and generations before they are ever challenged. Unlike laws that are designed to deal primarily with punishment, Supreme Court decisions deal with cultural and social changes. These decisions may not be as obvious to the average American citizen as are laws that deal with everyday actions.

Supreme Court decisions affect Americans on a far deeper level. These decisions permeate throughout our societal fabric and helped to create and expand an American sense of values to this country and the rest of the world. On the surface, a Supreme Court decision may appear to only deal with one individual or one company; but that decision will eventually affect many or all individuals and companies in this country.