Saturday, August 15, 2009

America’s Royal Court

Hollywood aside, the closest that we come to anything resembling royalty in this country is the Supreme Court. Calling it the Supreme court should be the first clue.

It has long fascinated me that, in this democracy, most of the rulings on laws that have directly affected our individual lives have been made by people who were not elected by us. And, once chosen to serve, cannot be removed by us, no matter how much we may dislike them. Talk about to the manor born!

Think about it. Nine people can have more effect on our lives than the elected President and 100 members of the Senate. Or, for that matter, 435 elected members of the House. Nine. And, the one justice who causes the majority is the one holding ‘ the balance of power’. One. What a country. “We the people. .” Yeah, right.

With Judge Sonia Sotomayor now confirmed by Congress to fill the Court vacancy, I thought it would be interesting to examine how this extraordinary body of barristers came to be.

As you will see, we made this court a royal one, not the Founders. In fact, we call it the High Court, which the Founders never did.

Other than establishing it, the Constitution spells out neither the specific duties, number of justices, powers nor organization of the Supreme Court. “ The judicial Power of the United States, shall be vested in one supreme Court ...” (Article III, Section I ) Instead, the Constitution left it to Congress and to the Justices of the Court itself to develop the authorities and operations of the entire Judicial Branch of government.
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That special power to choose justices was, in fact, given to the President :" nominate, by and with the advise and consent of the Senate" and curiously was buried in Article II, Section II of the Constitution. It was stated after " appoint Ambassadors, other public Ministers and Consuls.." and followed by " all other Officers of the United States, whose appointments....",and on and on. Originally there were only six Justices, later 7 (1807), then 9 (1837), a failed attempt at 10 with nine finally settled on (1869).

You have to wonder why we make such a big deal of these appointments since the Founding Fathers apparently didn’t. Of course, they didn’t have TV, the Internet or cell phones with cameras, texting, tweeting and whatever. It’s my guess, then, that they probably never imagined that the ‘power’ to select would someday result in a court of nine people who would resolve life-altering issues. “Roe v. Wade” comes to mind.

But, here’s the unbelievable part. When chosen and consented to, these judges remain on the bench for life. For life. Ye gads. Why? Because the authors of the Constitution wrote, “ The judges, both of the supreme and inferior courts, shall hold their Offices during good behavior.” (Article III/Section I ) Good behavior ? Boy those guys lived a simple life! Well, since the average lifespan at the time was in the mid-40’s, how long they served was probably of no real consequence to them.

In my view and, in due respect, the Founders really blew this one. But, the Constitution is, as they say, a “living document ”, so, we can and should perform minor surgery and amend the constitution to create term limits.

Should we do that, the regal aura surrounding these reclusive, virtually cloistered lawyers might then dissipate and even better, the Congressional hearings with televised posturing that gives birth to sound-bites might mercifully disappear.

Too bad, by the way, the Founders didn’t include “during good behavior” when establishing the rest of our government.

Till next time.....