Building A Firewall Around A Radical Supreme Court

6 Jul, 2024 · by Karl Auerbach · Read in about 9 min · (1774 Words)
blog SCOTUS Supreme Court of the United States Constitution

The Supreme Court of the United States (SCOTUS) has become a corrupt body. It is dismembering the most fundamental principles of our Constitution and Declaration of Independence. SCOTUS appears to be fixed upon a course to transform the United States into a monarchy of kings and courtiers, under a national evangelical church.

SCOTUS' five conservative members range from merely being disconnected from reality (Roberts) to anti-regulatory/pro-corporate hacks (Gorsuch) to evangelical warriors (Barrett) to the suspect corrupt (Kavanaugh) to right wing nationalists (Alito) to the outright corrupt (Thomas).

Recent decisions of SCOTUS risk displacing Dred Scott v. Sandford (60 US 393 (1857)) as the worst decision in US history:

In addition substantial questions have been raised regarding significant ethical lapses, under- (or non-) reported gifts (that have every appearance of lightly veiled bribes) from interested parties with present or future cases before the court, and conflicts of interest through spouses who have direct interests in cases presently or likely to come before the court.

SCOTUS has declared itself as primus inter pares - first among equals - of the three formerly equal branches of our Federal government. In the recent Fischer v. United States (603 US _ (2024)) SCOTUS declared the judicial branch, with SCOTUS at its head, as having the power to discard and reinterpret decisions of the legislative and executive branches. (This new power to reinterpret is a massive extension of the well accepted power of our courts to determine whether legislative and executive acts are within the Constitution.)

It is clear that the Supreme Court of the United States has run off the rails ideologically and ethically. SCOTUS has ejected our Presidential and Congressional pilots, locked the citizens of the United States out of the cockpit, and is flying our country straight into national catastrophe.

So what can we do about it?

This note suggests a radical, revolutionary answer to what is a radical, revolutionary problem.

That answer is to partially neuter SCOTUS.

The proposals made here require no changes to the existing Constitution. This proposal is entirely within the existing powers of Congress and the President.

How could this be done?

Let us begin at the beginning, with our national Constitution:

What Does Our Constitution Say?

There are a couple of parts of the US Constitution that tend to be forgotten:

Article I, Section 8 gives the following power to Congress (subject to the normal legislative requirement of a Presidential signature or veto override):

To constitute Tribunals inferior to the supreme Court

Article III, Section 1 goes further and states (emphasis added):

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

Article III, Section 2 states (emphasis added):

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Taken together these provisions give considerable power to Congress to shape the Federal judicial system:

Congress creates and defines the Federal courts below SCOTUS.
Congress defines the structure of SCOTUS itself (such as establishing the number of members of SCOTUS.)
And, quite importantly, Congress defines a large part of the scope of the jurisdiction of SCOTUS. And as every lawyer is taught - a court without jurisdiction is a court without authority or power to decide a case.

What Opportunities For Reform Are Opened By These Constitutional Provisions?

I have suggested in other notes that Congress could (with simple majorities in both the House and Senate) create an entire new hierarchy of Federal trial and appellate courts, leaving the existing hierarchy, and its judges, without any real power. See “Do We Need Rubber Rooms for Federal Judges? Two Plans To Reduce The Long Tailed Impact of Trump Judicial Appointees” at https://www.cavebear.com/cavebear-blog/rubber-rooms/

In this note I suggest that Congress has the power, with simple majorities in both the House and Senate, to do the following:

Remove or restrict the jurisdiction of SCOTUS to take, hear, and decide various kinds of appeals from the lower appellate courts.
Change the weight of authority of SCOTUS opinions so that they have merely persuasive weight rather being mandatory precedents.

The first proposal is the more important, the second is optional.

These are not lightweight changes to our present system, and there are many devils hiding in the details. However, we ought not to be afraid to consider radical solutions to redress the rampaging of a court that seems intent on a radical and revolutionary remaking of the United States into a theocratic monarchy like those of the 18th century.

Digging Deeper

Let’s elaborate on my suggestions.

It may be useful for the reader to review SCOTUS own description of its procedures:

Supreme Court Procedures - https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1

Restricting the Jurisdiction of SCOTUS

SCOTUS has “original” jurisdiction over only the limited types of cases defined in Article III, Section 2 of the Constitution: “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party”.)

That original jurisdiction has parallel statutory form in 28 U.S. Code § 1251 - Original jurisdiction.

Other cases are taken up by SCOTUS by the methods defined by subsections 1253 through 1260 of 28 USC Chapter 81.

This note proposes reshaping of 28 USC Chapter 81 so that the only cases that SCOTUS can take up and decide are those within its Constitutionally defined “original” jurisdiction and a limited set of cases certified to it from a new court, a new Principal Court of Appeal, described below.

Creation Of A New Principal Court of Appeal

If we restrict the inflow of cases to SCOTUS we will still need means to resolve differences between our existing appellate Federal courts.

We can do this by establishing a new court, something I call the Principal Court of Appeal. This new court would stand astride the existing Federal appellate court system, as SCOTUS does today, but without any mandatory, original jurisdiction.

Rather this new court would take cases only by the same means presently defined by 28 USC 1254 through 28 U.S. Code 1260.

There would be no power for SCOTUS to review the work of the new Principal Court of Appeal except for such cases as that Principal Court may chose at its sole discretion to certify for review and decision by SCOTUS. Moreover, the decision of the Principal Court would be in force during such review unless the Principal Court decides otherwise.

(SCOTUS would retain its original, but limited, jurisdiction defined in Article III, Section 2 of the Constitution. In other words “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party”.)

Judges on the new Principal Court would have the same right to hold their office potentially for as long as they live. But Congress could structure that new court to prevent the ossification that has so afflicted SCOTUS.

When Congress enacts the legislation to create this new Principal Court of Appeal it can put in place strong protections to prevent it from eroding as SCOTUS has done. These could include:

Ethical obligations, financial reporting by judges, and mandatory recusals for conflicts (with the question of whether there is a conflict resolved by the other judges.)
An active Inspector General with the obligation to publish reports to the public.
A sufficient number of judges so that a reasonably sized panel of judges (perhaps nine, to match present SCOTUS) could be randomly selected to hear each incoming case.
Create a two tier structure so that if nearly all the judges of the new Principal Court agree, a decision of that panel could be reviewed en banc**, just as is presently done in the Federal appellate courts.
Mandate that judges over a certain age be moved to emeritus status so that they participate only in those en banc** procedures.

With these kinds of rules this new Principal Court of Appeal could do more work than the present SCOTUS and have greater resistance against the kinds of effectively fabricated cases of recent memory that have been tailored specifically to the predilections and biases of the nine members of SCOTUS.

Changing SCOTUS' Opinions To Be Persuasive Rather Than Mandatory

Presently the decisions of SCOTUS are mandatory and binding on lower Federal courts no matter how ill was the way that those decision were reached. In other words, the decisions of SCOTUS are Procrustean iron beds to which a lower court must conform.

It is obvious that a judicial opinion that is well reasoned, factually based, consistent with prior practice and history, and unbiased will tend to be accorded greater weight by other courts than an opinion that is irrational, biased, ideological, or affected by corruption.

This note proposes that SCOTUS' decisions no longer be accorded unquestioned and automatic primacy as binding precedent.

Rather, this note proposes that Federal courts, from the new Principal Court on down be allowed to accord weight to SCOTUS decisions based on the persuasive quality of those decisions.

This note, however, proposes that decisions of the new Principal Court would have the full value of precedent that we now accord to SCOTUS.

One might ask: when lower courts disagree how do we bring them into alignment?

The answer is that the existing Federal courts of appeal will have power to align the district Federal courts in their circuit. And the new Principal Court can resolve differences between the appellate courts. This is exactly how things work today, but with the new Principal Court taking the role previously handled by SCOTUS.

Is This Feasible?

From a legal and Constitutional point of view these proposals are completely feasible with no change to our existing Constitution.

However, whether it is politically feasible is another matter.

This plan requires a unified Congress - both the House and Senate would have to pass legislation (by simple majority). And the President would have to sign that legislation or Congress would have to override a Presidential veto.

Even if both the House and Senate were of the same party, this plan would almost certainly bring immobilizing fear into the hearts of those members who would not have had the bravery to put their signatures on our Declaration of Independence.