Ted Becker – Informed Comment https://www.juancole.com Thoughts on the Middle East, History and Religion Wed, 05 Jul 2023 05:04:16 +0000 en-US hourly 1 https://wordpress.org/?v=5.8.10 Dear Chief Justice John Roberts: Your Rulings Show that you don’t Preside over a Court so much as a Partisan Tribunal https://www.juancole.com/2023/07/justice-partisan-tribunal.html Wed, 05 Jul 2023 05:04:16 +0000 https://www.juancole.com/?p=213035 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.   

How and Why the American Judicial System Saved the U.S.A. from Trumpism https://www.juancole.com/2020/12/american-judicial-trumpism.html Sat, 12 Dec 2020 05:04:50 +0000 https://www.juancole.com/?p=194935 By Ted Becker

No president has so many close associates from his election campaign and his administration tried in the federal criminal courts—and convicted or pleaded guilty—than Donald J. Trump did in his lone term. Score big points for the U.S. federal courts’ judicial independence for that alone. However, despite the 10 “obstruction of justice” charges levied against Trump in the widely unread “Mueller Report” and the degradation of the impeachment process by Trump, the biggest challenge for American courts came after the November 2020 presidential election, when the president kept his promise to challenge the entire election should he lose. In his mind, the only way he could lose would be by widespread systematic fraud and he would use the courts to expose these crimes and overturn the presidential election process.

Donald J. Trump’s modus operandi as a “business man” has been to use the courts frequently to get his way. He is rich enough to hire platoons of expensive attorneys to bring a panorama of lawsuits against those who would dare to trespass against him. As a lawyer myself, whose many best friends are attorneys, I am quite familiar with the fact that many cases are brought before judges even when attorneys know that they have either very weak cases or no case at all. This is because lawsuits cost a lot of money and can take up a huge amount of time to resolve each case. Most people cannot afford either. So they either settle for much less than they feel they are owed, or they drop the case from sheer exhaustion. The attorneys for Trump, however, get paid for billable hours. They don’t care how long it takes. Stalling for time is a good way to “win”. That’s why Trump thinks he is such a great “winner.”

So, when it became clear to Trump that he had lost the 2020 election, he reverted to form and kept his pre-election promise. He hired a battery of trial lawyers and contested the vote count in numerous states, particularly those with enough electoral votes to swing the presidency his way again, particularly where the margin of election for Biden was pretty thin. “Systamatic fraud” his attorneys cried. “Rigged election” they pleaded. At this writing, more than 40 such cases have been filed in state and federal courts. They came armed with briefcases full of “proof.” The judges, a number of them Trump appointees, quickly tossed them out of court. Why?

The title of my doctoral dissertation at Northwestern University was “A Working Theory of Judicial Decision Making.” This was published as a book by Rand McNally (1964) with a different, even less readable title. Nevertheless, the book has been cited well over one hundred times and has been acquired by several hundred research libraries worldwide. It defines and demonstrates the existence of the single factor which saved the American constitution from its most severe assault by any U.S. president ever. As a lawyer and social scientist, I believed that law school did something weird to my brain. It made me very conscious of something called “the law” and “judicial precedent.” Law students are brainwashed to defer to these factors when a case comes before a court or before you bring a case to court. Judges, are sworn to carry out the “judicial role.” They must be extremely wary of staying within “the law” and “precedent”—EVEN IF THEIR DECISION WILL GO AGAINST THEIR OWN POLITICAL PARTY’S INTEREST OR AGAINST THEIR OWN POLITICAL IDEOLOGY. I proved that point in a very modest experiment which was the basis of my book and several that followed. However, the American court system has now proved it in over 95% of the cases brought before it by the President of the United States and his legal warriors.

Trump and the Trumpeteers keep screaming about the mountain of “evidence” they possess that proves that the election was rigged, in fact, stolen from him. But trial judges of all political persuasions, and at the state and federal level, were uniformly aghast, dismissing the cases without even letting them go to trial. The reason for this is that the judges knew that the law and precedent was clear: there was no way “systematic fraud” could be proved by a trial. Therefore, they were bound by “judicial role” to dismiss them, often scolding Trump’s attorneys for wasting their time.

For example, the Trump Teams had piles of affidavits: sworn statements by people who worked at polls or knew people who worked at election offices and they swore, under oath to a Notary Public, that there was a lot of funny business going on. However, affidavits are not solid evidence in courts. Judges either want to know whether Trump and his legal minions would actually produce these people in court so they could be cross examined. That’s the way “civil procedure law” works. Looking at these sworn statements, they reeked of secondary knowledge and hearsay. They also reeked of political bias. A good defense attorney, at trial, would rip these witnesses to shreds. That’s the law, precedent and process these trial judges knew so well. They were not going to waste their time and violate their oath to play “the judicial role” on such flimsy evidence. So almost one and all, they dismissed the cases sometimes with eloquent scorn heaped upon Trump’s attorneys.

Trump was pressed for time. For once, he did not want to stall. Thus, he and his faithful attorneys were out of their element. This time, the bluff did not work in his favor, all because of “judicial role.” It was that law school training that was the final barrier to a business school president who was determined to undermine American democracy, based on law. Gee, after all these years, I’m finally glad I graduated from law school.


Bonus Video added by Informed Comment:

The Young Turks: “Supreme Court REJECTS Trump’s Last Hope”

Top 8 ways to Restructure the Supreme Court so it Looks more Like America https://www.juancole.com/2020/09/restructure-supreme-america.html Thu, 24 Sep 2020 04:04:10 +0000 https://www.juancole.com/?p=193422 Auburn, AL (Special to Informed Comment) – The Republican Party’s rush to appoint of a “social conservative” to replace Ruth Bader Ginsberg on the U.S. Supreme Court (hereafter referred to as SCOTUS), should make it abundantly clear that SCOTUS justices are highly political creatures and must be treated accordingly. Since we may as well admit this truth, we need desperately to reform the institution to take this into account.

Back in the 1960s, American political science took a radical turn towards the social sciences and this breakthrough affected all fields in the discipline, including the study of “Public Law.” That latter sub-field was mainly a historical and contemporary analysis of decisions. The new approach emphasized the politics, psychology, and sociology involved in all aspects of SCOTUS. The field that emerged was called “judicial politics” and I was one of a group of about a dozen who led the way. We were called “the band of brothers.”

We would be on panels at professional meetings together and hang out to discuss our thinking. I came to realize, after writing four books on the subject, that what was needed was to totally restructure SCOTUS. My colleagues, brilliant people all, agreed. But they added with emphasis: “Well, Becker, THAT’LL NEVER HAPPEN.” I got their point.

Still, I have kept a close eye on SCOTUS and its appointment process. So, here we are today. Trump is about to appoint a new justice to the Court and the Democratic Party is threatening to retool SCOTUS if they retake the Senate and the presidency in 2021. Thus, “never” may become the day after tomorrow.

I have given it many years of thought, and here is what needs to be done:

1. SCOTUS needs to be much larger. There is no constitutional limit to the number of justices on SCOTUS at the same time. It has drifted from 6-12 and is determined only by a law passed by Congress and signed by the president. The present number of 9 was set in 1869. President Franklin D. Roosevelt tried, in his “Court Packing” plan in 1936, to raise that number to 16—filled by those more friendly to The New Deal. Even a pro FDR Congress, filled with lawyers from his own party—resisted.

The present-day SCOTUS limits itself to hearing much less than 200 cases a year, turning many thousands away. In order to function more effectively for American citizens in need of a legal last resort, many more important cases need to be heard. Thus, I believe that to benefit the American citizenry, the Court needs 2 sections of 9 justices apiece, plus 2 alternates, thus requiring it to have 20 at one time.

All of them need to have graduated law school (though not necessarily practiced it). Of this number, less than half should be or should have been federal or state judges. Judges are a unique type of lawyer, very strongly opinionated. Some of the greatest U.S. Supreme Court justices in American history had no judicial experience before appointment to SCOTUS. They include: John Jay, John Marshall, Louis Brandeis, Felix Frankfurter, Earl Warren, William O. Douglas, Robert Jackson and, currently, Elena Kagan..

2. Any “Supreme Court” needs to be exposed as a “political” institution and not be touted as a “neutral” and “objective” arbiter in any country that pretends to be a democracy. This needs to be made perfectly clear in the Senate hearings and the pretense of judicial “impartiality” must be abandoned.

3. Thus, as part of their appointment process, candidates need to avow their true political positions and establish clearly their probable political positions on future political issues likely to come before SCOTUS, just as candidates for any political office should have a personal opinion concerning pending issues.

4. Congress and the President should try to have the 20 justices represent a fair proportion of a full spectrum of political positions represented on the Court., including third parties and independents.

5. Each panel of 9 should be rearranged annually by random selection.

6. No panel may declare a law passed by Congress and signed by the President to be unconstitutional other than by a 9-0 vote. Any lesser vote would be simply an “advisory opinion” to Congress and the President.

7. If a federal law is declared unconstitutional, Congress can overrule SCOTUS by repassing the statute by a 2/3 majority, just as they can over-ride a presidential veto. The president must also sign this override. In a so-called democracy, only elected officials should have final say on what is the law, not a tiny clique of politically appointed lawyers.

8. The Founding Fathers wanted SCOTUS to be “independent” of the executive and legislative branches, so they gave life tenure to each of the Justices of SCOTUS. There was another reason. They wanted the Court to be much older than Congress or the presidency, a very “conservative” structure and very undemocratic. In order to maintain the important “independence”, but do away with its traditional drag on the elective branches, a constitutional amendment needs be passed by Congress and ratified by the states putting terms limits on a Justice’s time on SCOTUS. I recommend 10 years, to outlast even a two- term president.

The last thing the Federalist Founding Fathers wanted was a popular, democratic power over federal laws. The Judiciary Act of 1789, passed by the Federalists, insured that the way the Constitution was interpreted by lawyers would keep the public totally uninformed and baffled. They succeeded beyond their wildest dreams Their SCOTUS has done well in creating and fortifying America’s present-day plutocracy.

Changes in federal court structure have been made before. A transformational alteration is now needed to have a modern day, political Supreme Court, to deal with present-day and imminent American crises by democratic, not elitist and antiquated, means.


Bonus Video added by Informed Comment:

10 Tampa Bay: “Congress can change the number of Supreme Court justices”