Hey all, welcome to another episode in the series Mature audiences only here on you’re listening to radio revel.
I’ve struggled a lot with this episode, to tell the truth. I was going to include it under the category of truth telling, but that wasn’t quite the right fit. Then I saw that I have a category called social comment and I figured I could frame my thoughts better if that were what I was doing, making some kind of social comment.
Way back in the early ’70s, let’s say 1972 just to make it sound like some historical period, when I was in the 8th grade, struggling to make friends, focusing on getting a “perfect attendance” award that didn’t even exist at my school, the Social Studies teacher began the spring quarter by telling us that we would be studying the United States Constitution for that entire quarter. She also made it very clear that this was a State mandate and that our graduation from junior high depended upon getting a passing grade on this test. Failing the test would probably lead to summer school study.
Except for the “passing grade to graduate” part, I thought back then and continue to think that this kind of civic study is indeed very important and should be part of that Junior High learning experience. Like learning and practicing Robert’s Rules of Order, knowing the structure of law that you are expected to abide by, who is in charge of what, as well as our civic duty to be useful, productive, law-abiding citizens, well, I think that should be studied and understood.
But I think we were lied to in some way. As we moved from Constitutional Article to Constitutional Article, one of the main take-aways I have from that experience over 50 years ago was the concept of the so-called “checks and balances“. 50 years later I kind of consider that whole concept a myth, a chimera, something we were told that exists but does not.
The Legislative branch seems to have the most checking power: they have the final say on Presidential appointments; they have the power to override a Presidential veto to legislation they have passed; they may impeach, then remove from office almost any member of the government from any of the branches. The checks that they must submit to are that Presidential veto and adverse Justice department, Supreme Court decisions on legislation.
The Executive branch can check the Legislative branch by the President vetoing legislation, but remember that the Legislative branch can override that if they have the votes. The Executive branch nominates members of the Judicial branch, but that’s not a real check or balance, the Executive can’t do much else to the Judicial.
The Judicial branch is where the whole checks and balances thing comes to a screeching halt. The Legislative can certainly impeach any judge it wants, but impeaching one judge or justice will hardly have an impact on the Judicial as a whole. The Executive gets to pick those judges and justices, but once they’re picked, there is nothing else Executive can do. Based upon just two words in the Constitution, “Good Behavior“, the appointees are granted a life-time job with a pay that is guarantied, again by the Constitution, to never become less than what it was when they first don the fancy robes.
And Americans just accept that. Especially troubling is the double-speak definition of “Good Behavior” as meaning “life-time“. Why were the framers of that document being so cagey?
I’ve searched and searched and just can’t find the episode, but in the series The good fight there is a scene in which a lawyer makes some complaint in front of the judge and the judge retorts with something like “A courtroom is not a democracy, it’s a monarchy, and in this courtroom, I am the queen.” Something else that Americans just accept.
We were fed that myth that there is some kind of check, or at least a balance, on those people we entrust with the vague mandate of interpreting the Constitution. I just reviewed the entire Constitution and it doesn’t really say anything about the Supreme Court “interpreting the Constitution”, even the Supreme Court website confirms this: “While the function of judicial review is not explicitly provided in the Constitution….”. Such “interpretation” was auto-assigned in 1803, when it was invoked by Chief Justice John Marshall.
While the arguments presented by John Marshall make sense, it does not make sense to me that a Chief Justice can just make up a rule and everyone has to accept it because there is no check on the Judicial branch. But there are more mundane things that really put me off on the institution.
First of all, that ridiculous robe they insist on wearing. It is obviously a costume meant to symbolize their roles as arbiters of the “final say“. Wow, looks like that Chief Justice John Marshall, official interpreter of the Constitution “elected” to use a black robe and everyone has just followed suit since. That robe is supposed to add dignity to the ceremony. I think it ought to go where the silly powdered wigs went early on in that democracy. It’s a left-over that is misinterpreted by the lay person as representing “justice” when it actually serves as a uniform of Authority (with a capital “a”).
Then there’s that silly picture they keep taking. You know the one, there’s a huge scarlet curtain hanging in the East Conference Room at the Supreme Court Building. Since 1882 they’ve been gathering in that five seated in front, four standing behind formation that is still used today. They wear their silly robes and smile for us. Yet, though the faces change from picture to picture, that static composition of the photo demonstrates just how out of touch that institution is with the real world. No change in pose in 142 years?
And what about that “Good Behavior” that has been generously interpreted to mean “life-time job”, or as seen in the past couple of decades, “when I’m good and ready” or “oops, that was my last breath!” Yet, for we mortals who can never count on a paying job that lasts all of our lives, “Good Behavior” means just that, “behave yourself”. We’ve recently seen examples of some pretty piss-poor behavior on the parts of some of those Justices, but no one has the power to point and say “You’re out! You’re behaving badly!” because they themselves have interpreted “Good Behavior” as something eternal, for life, once you get the job you have automatic “Good Behavior” bestowed upon you, and there is nothing the rest of us can do about it.
The worst part of the whole “Supreme Court” thing, for me though, is the accepted infallibility of their decisions. Save an amendment to the Constitution or a reversal by a later group of robe-touting, politically appointed and approved people, what they say goes and the rest of us just have to accept it, there is no questioning their “final say”. That just doesn’t seem right.
Those nine Justices don’t really look at any case, they simply look at an appellate request it seems, and then formulate a question that the two parties must debate between them in front of the Justices. The Justices hear the arguments, have a bit of back-and-forth with the parties, then take their sweet time in deciding the “final say“.
The problem with giving these people that “final say” is that they themselves seem to be protected from accountability. They don’t have to answer to anyone. There is that distant possibility of being impeached, and we all know just how effective that process is in reality, we’ve just had one guy impeached twice and despite the evidence, he was not held accountable. So, impeachment is not something that would put the fear of god into a Supreme Court Justice and remind him or her to do the job correctly.
So, while these nine people can spout out “final says” that affect all 320M people living in the country, no one can actually question their “final says”. No matter how much we scream “You’ve been bought by a billionaire” or “You’re wife actively participated in an insurrection!”, a certain judge will don his robes and arrogantly sit on high and make his contribution to that “final say”. There is no accountability.
There isn’t even a way to point a finger at them right now. While there may be evidence, facts, that any thinking person would consider enough to disqualify the opinion of any Justice, it doesn’t matter, current experience shows us that clearly these nine people are untouchable. They are, in effect, above the law that they have been appointed, during that ambiguous “Good behavior” term, to interpret and apply. We’ve all heard about 28 U.S. Code § 455, which states in quite less ambiguous language that “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Many people smarter than me have reasonably questioned the Justice sketched out above on the “bought by a billionaire”.
Or, wake up people!, his wife was texting the insurrectionist’s right-hand man throughout the debacle, as well as participating beforehand. There’s little question about that. Yet despite the law requiring him to recuse, the guy still dons his black robe and looks down upon us mere non-justices and give us the “final say” that will impact our lives.
And even when the tainted reputation is only too obvious, when the Nine rush through a favorable “final say” for a guy whose criminal and morally bankrupt background is well-documented and proven, and yet purposefully delay a fairly simple decision that holds consensus among Constitutionally named “Inferior Courts” that that Supreme Court obviously disdains, looks down its nose at with certain disgust, again to the favor of that sad, unhealthy, deranged, self-centered liar, temporarily extending their own magical shield against accountability towards him, who wouldn’t ask themselves if those nine people, supposedly outside of the realm of politics thanks to the “Good behavior” appointments are actually political actuaries themselves.
Because all of us are supposed to be bound by the Rule of Law. Any of us non-supreme-court-justices that assert or affirm this or that can be called out, our decisions can be proven wrong or simply ignored. Not these people in black robes. What they say goes. And the latest say-go behavior of those people is twisting a lot of us non-supreme-court-justices into pretzels because we are realizing that there is nothing we can do about it.
Sit down, shut up.
I personally think it was a pulling over our eyes of wool. How can we believe, for example, that this is not a body influenced by politics? Each member of that group is appointed by a political actor, each is screened and approved by a 100-person political monster. The idea that they are on that “Good Behavior” (remember, that’s “for life” in Supreme Court speak) without being tainted by politics is both a lie and the way they can be made to be held accountable.
Here’s my fix.
One day a reasonable congress made up of 435 Representatives and 100 Senators who really take the job seriously, will sit down and work out a comprehensive Constitutional Amendment that clarifies, in non-ambiguous language, the following “rules” to be applied to the Supreme Court in order to make it a manageable branch of Government, accountable to the Constitution, the Laws made by the Legislative branch, and most importantly, to the People of the country.
Article 1 Term Limits
No Supreme Court Justice shall serve on the Court for more than 20 years. In specific cases in which the physical or mental health of a Supreme Court Justice interferes with his / her hearing cases on more than three occasions, that Justice will be required to undergo the appropriate examinations by qualified professionals, whose reports will lead either to an approval to complete their term or a recommendation of ending their term, decision made by the President, who, in the case of term ending decision, will appoint a new Justice to be approved by the Senate.
Article 2 Deadlines
All decisions handed down by the Supreme Court will be registered in a timely manner. Cases shall be scheduled according to an Importance Scale, legislated by Congress, with the flexibility to change such scheduling in the case of an Emergency request. Decisions will be produced within two weeks of the oral arguments. The Supreme Court will not have the leisure to delay or postpone any final decision once oral arguments have been completed. Any such delay will lead to a dismissal of the case on the Supreme Court level, leaving inferior court decisions standing. Any case dismissed in this fashion can not be presented anew to the Supreme Court.
Article 3 Transparency
All decisions handed down by the Supreme Court must include opinion from all participating Justices justifying their concordance or dissent and such decisions must be signed. No decision made by the Supreme Court can be anonymously issued.
Article 4 Accountability
An Independent Judicial Control Office shall be established with the responsibility of oversight of the Supreme Court. It’s members shall be appointed by the President and approved by the Senate. There will be a process of denouncement open to any citizen of the US, investigation, report and, if needed, accusation, presented to the Approval Body, the Senate (they put those guys in the seat!) who will automatically hold hearings ending in a decision on the behavior of any Justice or Justices. Following the Constitutional mandate of “Good behavior“, a simple majority of the Senate must decide if the Justice continues to show such “Good behavior” or, on the contrary, must be removed from the Court, leading to the House of Representatives beginning the Impeachment process on recommendation of the Senate.
Article 5 Ethics
Well, we need to toss that word right out with the bath water. When we begin to apply codes of ethics to a body of people we are pretending that those people are not people. While some may abide to a code of ethics, many will not, making the code of ethics just another veil to hide the truth behind the myth. And those nine people have, until recently, not had a specific code of ethics, and even if they had one, as they seem to indicate they do now, it wouldn’t matter, because they are the ones with the “final say“.
Which brings me to the Catch 22 here, and the reason I suggest an Amendment to the Constitution rather than simple Legislation. If an American Congress ever returns to being a legislative body that creates rules that help us all live together peacefully and justly (rather than being the shit-throwing monkey show it’s been for nearly a decade, if not more), the Supreme Court can have the “final say” about that law, interpreting the Constitution however it pleases, knocking down any part that may hold their feet to the fire, protecting their high-browed status in American Society.
Thus, Constitutional Amendment time folks!
And maybe those Justices are actually doing the American people a favor with their current behavior. There is little doubt, according to so-called approval ratings, that the American people just don’t think that much of the Supreme Court. Were it not for the United states hovering in that 50-50 realm of extreme division, they might be able to approve that Amendment to the Constitution that would bring that Court down from their high bench that obviously puts them above the laws the rest of us have to abide by.
You all need to stop believing the myth that the Supreme Court of the United States is the “final say”. They only have that “final say” up to the point where regular people stop paying attention to what their final say seems to be saying. Unfortunately, I fear there is no remedy. Go out and vote, that’s fine, doesn’t matter, whoever wins, the Supreme Court, nine monarchs in silly black robes with holier-than-thou attitudes will continue to rule the country.
Does that sound extreme? What’s extreme to me is that once in a courtroom, there is no such thing as democracy or democratic values. While the idea of presenting facts and reaching a clear decision based upon those facts is wonderful, the whole thing is struck down by the monarch in robes who, without accountability at the moment, has the final say. And what’s worse, there are nine monarchs above him or her who really have the final say without ever having to abide by any final say, not even the Constitution, which they interpret.
Do as I say, not as I do. Hard to accept from my parents. Why are we accepting it from these people?
Enough. Had to shout out that silly situation you all live in over there. Glad I’m not there!
For any of you out there interested in some more detailed, and certainly smarter analysis of the Supreme Court, I encourage you to check out Senator Sheldon Whitehouse’s series of videos entitled The Scheme on YouTube. Some surprising stuff there that should make us all question that institution.
Cheers,
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