Auburn, Al. (Special to Informed Comment; Feature) –
Dear Chief Justice Roberts. Let me give you a hanky. All those nasty critics of “your” court, including those three hectoring female justices hanging off the edge of it, I’m sorry you’re so disturbed.
Well, C.J. Roberts, let me help. I’ll give you a little lesson in Judicial Process 101, which they don’t teach in law school. For example, what is a “court” anyway? Does Russia have a real court system? China? Did the Nazis? The answer is, no. Judges in those systems knew or know very well what to decide. They follow the party line or they get canned, killed or exiled. They have no independence, and would be frightened of asserting any such thing.
My first four books were studies about court systems around that world. In order for courts to be considered “legitimate”, they need be considered by the legal system and the general public to be impartial and objective arbiters of disputes. I was one of the first new wave of political scientists / lawyers to define and explore the concept of “judicial role,” essential for any judge to play in real life empirical courts, in real courts that routinely pass relatively neutral judgments. That is why you have life or long fixed terms to make you independent of politics in making such key decisions.
So, what characterizes this judicial role that allows a man or woman to be a legitimate impartial arbiter in any dispute? It is this, Sir. In order for a judge to be the chief decider in a genuine court, he or she must be bound by the law, by constitutions, statutes or established judicial precedent. That’s why we have to stand when you enter the courtroom.
American politicians say that “the rule of law” applies to everyone and is essential to “democracy”. No one is “above the law.” That surely includes judges. In the American system of jurisprudence and politics, the court is distinguished from other branches of government because judges are not supposed to let their political party, ideology, or economic or political interests get the better of them in deciding cases. In the Anglo-American system, judges are bound by an ancient and stringent doctrine called, in Latin: stare decisis . . . which means “let the previous decisions stand.”
Further, judges must simply apply existing law. They do not have the power to change the law according to their political and economic theories and personal prejudices. To do so is bias and means that the judge is really not a judge at all but a policy maker and a political actor. Exhibiting extreme partiality of the sort that the Roberts court has repeatedly shown demonstrates that the justice or judge is not objective and therefore undermines any claim of the tribunal judging the merits of a case to being a court at all. It has become, instead, a political tribunal, and should now be demoted to that status by the other branches of government. That’s you and your ‘Court”, Sir. You are not “Your Honor.”
In America, Congress and the President can change the very structure of a Supreme Court that devolves into just another political institution. When SCOTUS does this habitually, it must be neutered, since it is not neutral.
It is not always wrong to overturn a precedent, if the precedent was clearly unconstitutional. The Warren Court most famously did this by overruling Plessy vs Ferguson (1896) by Brown v. Board of Education (1954). The Plessy case legitimized Jim Crow Apartheid that ruled the latent Confederacy of the South for nearly six decades . The Brown case changed that and recognized the Fourteenth Amendment the real law of the land again.
In the case of Dobbs v. Jackson Women’s Health Organization, whereby you overruled Roe v. Wade, however, you cited no constitutional right that had been denied to women by Roe. Indeed, despite Justice William O. Douglas’s correct finding that the Constitution creates “zones of privacy, such as the First Amendment right of association, the Third Amendment prohibition against quartering soldiers in a home, the Fourth Amendment right to be secure in one’s person, house, papers and effects, the Fifth Amendment right to not surrender anything to one’s detriment, and the Ninth Amendment right to not deny or disparage any right retained by the people,” you began whittling away at our right to privacy.
Perhaps this new Trump Court thinks it can toss even the Brown case striking down “separate but equal” racial facilities into the garbage can as well? Give it a try, C. J. Roberts, and see what happens. We all know you can be trusted to overrule any precedent. You proved that in Citizens United which gave monopolies and Big Wealth (the new Billionaire Class) almost complete control over all federal elections in the U.S.A. Despite your sworn testimony at your Senate confirmation hearings, you have no respect for your predecessor Supreme Courts and you are but a loose political cannon hidden by a black shroud.
Reform the court? How can anyone do that when SCOTUS is obviously a political panther? It must first be caged . . . because with its unbridled power it is, by far, as one Judicial Politics scholar said recently, “the most dangerous branch of American government.”
The Founders believed that in order to insure judicial independence, SCOTUS justices need to feel free from political pressure. But life terms? Ridiculous and dangerous. Surely 8-10 year terms are sufficient to grant that independence. The best reform for defanging this political supervisor of the Constitution and laws of the land, would be to require that any ruling that a law is unconstitutional would have to be made by a unanimous vote (9-0). The same requirement should be there for overruling executive orders, Congressional statutes, and administrative decisions. Implementing such a requirement will take time.
It is possible, Justice Roberts, that your SCOTUS, created by the Federalist Society, is consistent with the ideals of that 18th century American political scene, which is to say, it is woefully outmoded. Your resurrected Federalist Party has been from the start proudly anti-democratic and strongly favored a national government designed to be ruled by rich white men only. That outcome clearly violates 21st century American values, and if the Constitution is to survive it must be flexible enough to encompass contemporary mores. Your runaway political institution that is above the law, and which is attempting to make the Constitution brittle and hated, must be corralled ASAP.
In the meantime, excuse me, you need to be impeached for perjury, since you swore before Congress that abortion rights were settled law. Moreover, two of your political henchmen need to be impeached for clearcut violations of governmental ethics. Not only is your court no longer a court, it is now a pay-to-play abomination.