News Intelligence Analysis
Justice Denied:
The Supreme Court's Dark Slide Into the Power Bog of Political and Religious Domination
Two Solutions: Impeachment or Stacking the Court
[Impeachment: Yurica Report Editor's Note: The following New York Times editorial demonstrates why every American should be deeply concerned about the direction of the Roberts's Court. The editorial is a convincing statement that effectively demonstrates the following: Precedents are not just being overturned--the five Catholic justices (John Roberts, Samuel Alito, Antonin Scalia, Clarence Thomas, and Anthony Kennedy) are endangering jurisprudence in this nation by violating their oaths of office. Instead of maintaining judicial impartiality it appears they are imposing their religious and political ideology upon all Americans. The U.S. Code Title 28, Part I, Chapter 21 at Section 453 states the oath of justices and judges as follows:
Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: "I, ________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God."
Violations of the oath are grounds for impeachment. Whenever any justice or judge follows a course of conduct that is prejudicial to the public interest, conducts himself in a biased or prejudicial manner, shows judicial favoritism, fails to give impartial consideration to cases before him, he perverts his official duty to maintain his judicial character and must be removed from his office.
In addition there is a second
oath that federal judges must take--(which includes the justices
of the Supreme Court). 5 USC 3331:
An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: “I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” This section does not affect other oaths required by law.]
July 5, 2007
Editorial
From
the N.Y. Times
In the 1960s, Chief Justice Earl Warren presided over a Supreme
Court that interpreted the Constitution in ways that protected
the powerless — racial and religious minorities, consumers,
students and criminal defendants. At the end of its first full
term, Chief Justice John Roberts’s court is emerging as
the Warren court’s mirror image. Time and again the court
has ruled, almost always 5-4, in favor of corporations and powerful
interests while slamming the courthouse door on individuals and
ideals that truly need the court’s shelter.
President Bush created this radical new court with two appointments in quick succession: Mr. Roberts to replace Chief Justice William Rehnquist and Samuel Alito to replace the far less conservative Sandra Day O’Connor.
The Roberts court’s resulting sharp shift to the right began to be strongly felt in this term. It was on display, most prominently, in the school desegregation ruling last week. The Warren court, and even the Rehnquist court of two years ago, would have upheld the integration plans that Seattle and Louisville, Ky., voluntarily adopted. But the Roberts court, on a 5-4 vote, struck them down, choosing to see the 14th Amendment’s equal-protection clause — which was adopted for the express purpose of integrating blacks more fully into society — as a tool for protecting white students from integration.
On campaign finance, the court handed a major victory to corporations and wealthy individuals — again by a 5-4 vote — striking down portions of the law that reined in the use of phony issue ads. The ruling will make it easier for corporations and lobbyists to buy the policies they want from Congress.
Corporations also won repeatedly over consumers and small stockholders. The court overturned a jury’s award of $79.5 million in punitive damages against Philip Morris. The Oregon Supreme Court had upheld the award, calling Philip Morris’s 40 years of denying the connection between smoking and cancer “extraordinarily reprehensible.”
In a ruling that will enrich companies at the expense of consumers, the court overturned — again by a 5-4 vote — a 96-year-old rule that manufacturers cannot impose minimum prices on retailers.
The flip side of the court’s boundless solicitude for the powerful was its often contemptuous attitude toward common folks looking for justice. It ruled that an inmate who filed his appeal within the deadline set by a federal judge was out of luck, because the judge had given the wrong date — a shockingly unjust decision that overturned two court precedents on missed deadlines.
When Chief Justice Roberts was nominated, his supporters insisted that he believed in “judicial modesty,” and that he could not be put into a simple ideological box. But Justice Alito and he, who voted together in a remarkable 92 percent of nonunanimous decisions, have charted a thoroughly predictable archconservative approach to the law. Chief Justice Roberts said that he wanted to promote greater consensus, but he is presiding over a court that is deeply riven.
In the term’s major abortion case, the court upheld — again by a 5-4 vote — the federal Partial-Birth Abortion Ban Act, even though the court struck down a nearly identical law in 2000. In the term’s major church-state case, the court ruled 5-4 that taxpayers challenging the Bush administration’s faith-based initiatives lacked standing to sue, again reversing well-established precedents. In a few cases, notably ones challenging the Bush administration’s hands-off approach to global warming and executions of the mentally ill, Justice Anthony Kennedy broke with the conservative bloc. But that did not happen often enough.
It has been decades since the most privileged members of society — corporations, the wealthy, white people who want to attend school with other whites — have had such a successful Supreme Court term. Society’s have-nots were not the only losers. The basic ideals of American justice lost as well.
Copyright 2007 The New York Times Company
From the New York Times
July 26, 2007
Op-Ed Contributor
Another Viable Solution:
Stacking the Court
By JEAN EDWARD SMITH
Huntington, W.Va.
WHEN a majority of Supreme Court justices adopt a manifestly ideological agenda, it plunges the court into the vortex of American politics. If the Roberts court has entered voluntarily what Justice Felix Frankfurter once called the “political thicket,” it may require a political solution to set it straight.
The framers of the Constitution did not envisage the Supreme Court as arbiter of all national issues. As Chief Justice John Marshall made clear in Marbury v. Madison, the court’s authority extends only to legal issues.
When the court overreaches, the Constitution provides checks and balances. In 1805, after persistent political activity by Justice Samuel Chase, Congress responded with its power of impeachment. Chase was acquitted, but never again did he step across the line to mingle law and politics. After the Civil War, when a Republican Congress feared the court might tamper with Reconstruction in the South, it removed those questions from the court’s appellate jurisdiction.
But the method most frequently employed to bring the court to heel has been increasing or decreasing its membership. The size of the Supreme Court is not fixed by the Constitution. It is determined by Congress.
The original Judiciary Act of 1789 set the number of justices at six. When the Federalists were defeated in 1800, the lame-duck Congress reduced the size of the court to five — hoping to deprive President Jefferson of an appointment. The incoming Democratic Congress repealed the Federalist measure (leaving the number at six), and then in 1807 increased the size of the court to seven, giving Jefferson an additional appointment.
In 1837, the number was increased to nine, affording the Democrat Andrew Jackson two additional appointments. During the Civil War, to insure an anti-slavery, pro-Union majority on the bench, the court was increased to 10. When a Democrat, Andrew Johnson, became president upon Lincoln’s death, a Republican Congress voted to reduce the size to seven (achieved by attrition) to guarantee Johnson would have no appointments.
After Ulysses S. Grant was elected in 1868, Congress restored the court to nine. That gave Grant two new appointments. The court had just declared unconstitutional the government’s authority to issue paper currency (greenbacks). Grant took the opportunity to appoint two justices sympathetic to the administration. When the reconstituted court convened, it reheard the legal tender cases and reversed its decision (5-4).
The most recent attempt to alter the size of the court was by Franklin Roosevelt in 1937. But instead of simply requesting that Congress add an additional justice or two, Roosevelt’s convoluted scheme fooled no one and ultimately sank under its own weight.
Roosevelt claimed the justices were too old to keep up with the workload, and urged that for every justice who reached the age of 70 and did not retire within six months, the president should be able to appoint a younger justice to help out. Six of the Supreme Court justices in 1937 were older than 70. But the court was not behind in its docket, and Roosevelt’s subterfuge was exposed. In the Senate, the president could muster only 20 supporters.
Still, there is nothing sacrosanct about having nine justices on the Supreme Court. Roosevelt’s 1937 chicanery has given court-packing a bad name, but it is a hallowed American political tradition participated in by Republicans and Democrats alike.
If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.
Copyright 2007 The New York Times Company
Jean Edward Smith is the author, most recently, of “F.D.R.”
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