The Fake News on Supreme Court Appointments

Moi Downsize


13 July 2018

By David Arthur Walters

There is indeed something “fake” about mainstream media “news” although not anywhere near as fake as the packs of lies drummed up by its detractors. Take, for example, reports of the confirmation drama looming in the United States Senate over President Donald Trump’s nomination of Judge Brett M. Kavanaugh to the Supreme Court.

The nomination is destined to be confirmed by a partisan majority intent on stacking the Court with judges partial to so-called conservatism. Thus it is expected to be an ideologically prejudiced appointment. Champions of democratic progress believe it will doom the nation to the loss of civil liberties previously concocted by judicial interpretations of Constitutional vagaries.

On 11 July 2018 the reputedly liberal New York Times devoted two front-page columns to the event, pronouncing it a “novel historical moment” because Judge Kavanaugh, coincidentally, is famed for his learned opinion that presidents cannot be subpoenaed to testify in criminal investigations although they may be impeached and removed from office for “high crimes and misdemeanors.”

A study of past impeachments indicates that a president may thus far be subpoenaed in criminal proceedings against him although he may not be prosecuted, convicted, and imprisoned while in office. If he is convicted by the Senate on the impeachment charge brought by the House of Representatives, then he might be, for example, prosecuted for conspiring with the Russians to corrupt the nation’s electoral integrity. It might be argued that that would constitute unconstitutional double jeopardy, an argument that would probably fail.

So the “novelty” here is the unspoken insinuation of a quid pro quo. The unwitting are led to infer that Judge Kavanaugh, in return for life tenure in a prestigious post, will collaborate with his like-minded colleagues on the bench, and declare that President Trump does not have to testify in criminal proceedings.

That is a piece of nonsense, for all he would have to do is show up and plead the Fifth Amendment right against self-incrimination, an act that certainly would not sully his already tarnished reputation. As he has correctly noted with some amusement, he could murder someone on the street and his populist base would support him.

So this “historically novel moment” is a trivial coincidence, a barely newsworthy footnote, an understatement to the effect that this conservative judge would bolster the conservative prejudices of his conservative colleagues, who would supposedly constitute a judicial majority favoring executive privilege or imperial presidency, one of the things that the Supreme Court was supposed to offset.

One might think that “news” should be genuinely novel to be called “novel” and momentous, otherwise it would be “fake news.” If the New York Times, which conservatives love to hate, wanted to devote half the print on its first page to the real issue, the paper would, in covering the attempt to render the Court a conservative tool, emphasize that the Court does not have the Constitutional power to declare legislation unconstitutional. In other words, although its decisions, on what is and what is not constitutional, have almost always been implemented by the executive and legislative branches, those “judicial reviews” are not provided for in the Constitution hence are unconstitutional.

Let that instance of judicial activism fly in the face of fake conservatives who profess Originalism if not Strict Construction yet would stack the Court with their own ilk so the Court’s unconstitutional decisions accord with their prejudicial ideology instead of impartial justice.

Ironically, one argument for allowing the Court to continue with judicial review is that it is a “weak” branch of government inasmuch as it does not have the means to enforce its opinions. That is left to the executive branch, which is supposed to obey Congress. In reality we have a variety of functions that evolved within a ball of wax.

Recall the evolution of the limbs of the tree, that what we call the Senate was once the King’s Court composed of nobles whose advice he might ignore if the feudal balance of power was in his favor, and that was tempered by commoners whose cooperation was needed to fund the royal campaigns. The monarch would eventually be reduced to a virtual figurehead in England. Parliament is supreme, and government is led by an elected cabinet that chooses a prime minister perfunctorily recognized by the monarch. New elections may be called if the government cannot get along. The judicial courts evolved and gradually won their independence. The court of impeachment and court of last resort was a judicial function of the House of Lords until 2009, when the 2005 Constitutional Reform Act creating a Supreme Court took effect. There is no written constitution but for the laws on the books. If there is a constitutional issue it must be resolved by Parliament in the form or repeal, revision, or new legislation. Its Members and the courts know well what the rights of all English citizens are.  They certainly recall the rights lords won against the tyranny of monarchs, and the various rights billed thereafter. Those rights may be found in several documents in case someone forgets, but hardly any Brit does.

So much for the mother country: sometimes mother knows best. By the way, the liberal anti-Federalists suspected the Federalists would deprive them of unwritten rights, so they demanded a written declaration of rights in the new Constitution, which were duly added as by-the-ways or amendments at the very bottom of the document.

We now have universal suffrage and a popularly elected president. That person may be a moron as long as he is a natural born moron, and he may stack his cabinet with highly credentialed bigots and other idiotic ideologues with the consent of a Senate majority sympathetic to their own need to maintain status as members of the power elite beholden to the vested interests that virtually own the country. A Senator might be a constitutional scholar, a professional politician, a lawyer, and so on, or merely a vulgar tool of the average mentality, a sort of people’s bully. Whosoever he is, he may be swayed by public opinion unless he is a sociopath at the head of a mob of gangsters whose crimes may or may not have been legalized by their peers.

A change of a very few words in our Constitution would protect the people from outrageous government by reverting the constitutional structure to a cabinet government led by an experienced politician of its choosing, a government that would be removed if it confidence in it is lost.

The United States “supreme Court” was conceived as a relatively independent branch of government that would balance the branches and protect the people from the executive and legislative functionaries. To say it is “supreme” is not meant to say that its power is ultimate or superior to the legislative and the executive powers. Rather, it is to say it is the last court of resort, and in some cases an original court, that determines whether or not government is abiding by legislation. That is not to say that it may legislate itself or declare legislation null and void although every court necessarily legislates because it must interpret whether or not general statutes apply in particular cases. The Constitution explicitly provides that it is merely an appellate court, and that its appellate power may be regulated and exceptions taken to its exercise. That exercise might take the form of judiciary acts.

So how did the Court become what Thomas Jefferson, who had praised it early on, a tyrannical oligarchy, after its decision in Marbury v. Madison?

We remember that the outgoing Federalist president, John Adams, with help from the Senate, stacked the courts with Federalist commissioners on his way out. The sealed appointment of Judge William Marbury, a wealthy Federalist supporter of President Adams, was not delivered on time by John Marshall, the outgoing Secretary of State, so when incoming President Jefferson refused to recognize Marbury’s appointment to Justice of the Peace of the District of Columbia because his own Secretary State, anti-Federalist John Madison, refused to deliver the appointment, Marbury appealed to the Court for its mandate confirming his appointment, claiming that the Judiciary Act of 1789 sanctified the sealed appointment even though it was not delivered.

John Marshall was appointed Chief Justice by that time. He was a Federalist himself, so one would not be surprised if his judgment would be biased against Marbury, but it was not, at least not entirely, for he feared for the independence of the Court at the time. That overriding concern led him to straddle the issue, leaving scholars to debate his reasoning ever since, some even declaring his argument patently absurd.

The Court determined that delivery of the appointment was not required by the Judiciary Act of 1789 that created the Supreme Court. The seal on it sufficed. Alas, however, for Marbury, because the provision of the Act allowing Marbury to assert his claim directly in the Supreme Court was purportedly unconstitutional. Marshall wrote that it was the duty of the Court to say what the law is, and, that there was inherent in the Constitution a bestowal of special power on the Court to review legislation and declare it unconstitutional. End of discussion.

But no intrinsic right of judicial review of constitutional law exists in the Constitution. The Constitution is a fulcrum of controversy based on experience. Crucial disagreement over the meaning of its fundamental language should be referred back to the people’s legislature or directly to the people. Nevertheless, the Court is unlikely to contradict itself to overturn its decision in Marbury v. Madison. That may be done by Congress. If that deed be declared unconstitutional by the Court, then the justices may be impeached or their opinion ignored.

We should not, however, treat judicial review so callously now that it is traditional, meaning it has evolved from historical needs according to the circumstances of time and place. Judicial review was unheard of until it was invented by American judges even prior to Marbury v. Madison. Some of those judges had their doubts if it was constitutional.

As every fifth grander is supposed to know, the Confederation of states was not working out well. A strong federal government was needed to unify the nation, so the Constitution was forged from the debate between Federalists and Anti-Federalists. The extent of sovereignty of the several states was not settled and may never be. Federal judges were naturally interested in conserving the federal nation, so we find a number of cases where they determined that state legislation was unconstitutional. John Marshall simply crowned the practice. Of course the tables would be turned to suit the occasion, and the Anti-Federalists in another situation backed judicial review while Federalists abhorred it.

States may in theory but not in practice secede from the Union. That much seems to have been proven by the Civil War. Yet the old struggle for state’s rights has not ended. President Trump would like to see Roe v. Wade and other Supreme Court legislation voiding state laws overturned. Let the states be sovereign in those matters. For example, a woman might get an abortion and divorce in Nevada and marry a woman within the week given the appropriate state legislation, yet that might be prohibited in her home state, where she might even be arrested for abortion and homosexuality.

So now the President would have the Supreme Court liberate states from infringement on their sovereignty. Is he a liberal or a conservative?

Why not have Congress simply withdraw the power of the Supreme Court to actively legislate from its bench, and depend on Congress to repeal, amend, and pass new legislation to remedy civil rights issues?

Or it would not be such a bad idea to have a Constitutional Council to review legislation and determine its constitutionally before it becomes effective, as in France, which has a written constitution?

Or we might have a constitutional committee of the U.S. Congress review legislation when unanticipated situations arise, although one might then wonder why the Supreme Court is not allowed to continue to perform that function since it might be more independent.

The ideological partisanship evident today makes it all too obvious that elected Senators do not desire a nonpartisan, impartial, independent Supreme Court. The President and faux conservative partisans want partial justice under the law. They want laws interpreted by dependent justices who swear to uphold the Constitution so they may interpret it according to their theological and ideological prejudices.

This curse on the public welfare may not be absolutely solved by judicial selection methods because justice involves the distribution of power hence is political, and every political animal is prejudiced to a certain extent in its own favor. We curse the judges and the politicians without realizing that they are the scapegoats for our own faults.

Whatever the form of government, public opinion rules in the end. It appears from the current divisiveness and the absence of good character and ethical leadership that not only the goats but millions of their kids might be run into the desert and sacrificed in short order.

We are indeed at a “historically novel moment.” The tension of this crisis may result in revolution wherein the principles of the French Revolution will be pressed forward. One sort of tyranny may soon be replaced by another, as is usual, or there may be progress from the current regression.

No, this is not a trivial moment. Novels are already being written about it. This is not fake news. Sad to say, it is a reality show.