Article 3 of The Constitution of the United States says that the “Judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress shall from time to time ordain”. That is all it says.
Article 1 deals with the Congress and Article 2 has to do with the President. Their powers and functions are generally enumerated. Apparently it was assumed that the Supreme Court will do whatever courts do.
In 1800 Thomas Jefferson, a Democrat, was elected to the presidency. On his last day in office the former president, John Adams, a Federalist, appointed his Secretary of State, John Marshall, as the third Chief Justice of the Supreme Court. He also made 58 appointments to the federal judiciary; the new judges were called “midnight appointments. These appointments were made under the Organic Act, which presumably would allow the Federalists to take control of the federal judiciary. Adams was attempting to pack the court with Federalists for years to come.
The new president, Thomas Jefferson, was the head of the Democratic Party. He wanted to appoint his own men to the Judiciary.
John Marshall, the new Chief justice, was a Federalist who adhered to the Federalist principals. It was believed that Marshall could be impeached for rendering a decision favoring the Federalists. Instead Marshall rendered a decision finding a section of the Judiciary Act, a Federalist law, unconstitutional. The decision was based upon the fact that these powers were not given by the Constitution. A section of a Federalist law was declared unconstitutional and the principle of judicial review was established. John Marshall had checkmated Jefferson and had given the Court the power to oversee the laws of the United States.
President Thomas Jefferson ordered his Secretary of State, James Madison, not to deliver these commissions of office. William Marbury brought his case before the Supreme Court under a writ of mandamus which demanded that the Secretary of State deliver his commission. Chief Justice John Marshall found a section of the Organic Act unconstitutional because it contradicted the constitution. Marbury did not get his commission and Jefferson could not impeach his chief justice. The Court’s power of Judicial Review was established.
While the Supreme Court has dealt with many issues from the overall Constitution a large percentage of its decisions have and are being based upon the Bill of Rights which was added to the original document.
Of the current nine Justices of the Supreme Court currently serving on the Court two were appointed by Reagan, a Republican, one was appointed by the elder Bush, a Republican, two were appointed by Clinton, a Democrat, two were appointed by the younger Bush, a Republican, and two were appointed by Obama, a Democrat. The Republican appointed Justices tend to be conservative in their decisions and the Democratic ones are liberal. The current balance is 5 to 4 in terms of conservative decisions.
The oldest judge, Ruth Bader Ginsburg was born in 1933 and is 81 years old. She recently gave a 35 page passionate dissent in the Hobby Lobby decision. The two Reagan appointed judges, Antonin Scalia and Anthony Kennedy were born in 1936 and are 78. One of Clinton’s appointees, Stephen Breyer is 76. The rest of the Judges date from 1948, Clarence Thomas, to 1960. Three of the Justices are women.
Four of the Justices are well over the retirement age and one has just reached it. Whoever is elected in 2016 could well determine the direction the court will take over the next decade or longer.
Traditionally the Court in its decisions has been behind the times. Until relatively recently the Judges have all been men, usually elder men whose views were firmly fixed before they were appointed to this office. Their views reflected their lives which were centered upon their earlier years. For example during the Roosevelt Administration the Justices found much of the New Deal unconstitutional. Roosevelt while running for his second term proposed a plan to pack the Supreme Court, wanting to place a second judge for each presiding Justice who had reached a certain age. He failed to be able to carry this measure through Congress. However there were retirements and he placed New Deal Lawyers on the Court.
Another case where the Court was out of sync with the majority of the society was the Dred Scott Case in 1857. Here the Chief Justice writing for the majority declared that Dred Scott, who had been taken by his owner outside of slave territory was still a slave because he could not sue for his freedom. Further that slaves could be taken anywhere in the Union and still remain slaves; that the Missouri Compromise of 1850, which avoided the Civil War a decade earlier, was unconstitutional. The reaction of the Northern and Western states, that had the bulk of the population, was to get proper men elected who would appoint antislavery people to the Supreme Court and change that erroneous decision. Are we in a similar situation today? The country is facing massive problems with the current state of immigration laws and unlimited funding for political campaigns.
Interestingly, the number 9 for the number of Judges is not sacrosanct. The only thing stated in the Constitution is that there shall be a Supreme Court, Congress determined how many members would be on the Court after some experimenting and the number 9 is what they ended up with.
A former Justice on the Supreme Court once said that “the Constitution means what we say it does,” but he did not say that the Court can change its mind as it did in the case of Plessy v. Ferguson, where it found “separate but equal” Constitutional in 1896 but inherently unconstitutional in 1954 in Brown v. Topeka Board of Education.
Nothing, it seems, is permanent as far as the meanings of the United States Constitution are concerned. Voting rights limits, limits on financing political parties, affirmative action rights, the sanctity of a woman’s body or the right of contraception. All these can be legislated upon and the limits of this legislation can be set by the Supreme Court.
Perhaps the most irresponsible decision made by the five conservative judges on the Supreme Court is the Burwell v. Hobby Lobby Case which was decided on June 31, 2014 with the argument written by Judge Samuel Alito. This decision gave employers of “closely held” companies; that is, those controlled by five or less individuals the power to decide whether or not to include certain forms of birth control in their Affordable Health Care Plans for their female employees. Hobby Lobby lawyers argued that doing so infringed upon the owners religious beliefs. Of course the beliefs of all the female employees who would be deprived of contraceptive devices by their employers was superfluous.
Judge Ruth Bader Ginsburg wrote an impassioned 25 page decent for herself and her three fellow liberal judges, implying that this decision was opening up a Pandora’s Box for all sorts of religious claims by trumping of employers rights. She also pointed out that the general public, the taxpayers would end up paying for these legitimate health care needs.
What should be interesting in the near future is to see who makes claims in order to hold up their religious beliefs, who wants to avoid paying for coverage of blood transfusions (Jehovah’s Witnesses), antidepressants (Scientologists), vaccinations (Christian Scientists), immunizations, employing homosexuals, etc. These are only a few of the possibilities that can open up in the near future and beyond.
On Monday the five members of the Supreme Court exempted Hobby Lobby from having to provide contraceptive coverage to women in their health care insurance policies; on Thursday of the same week they provided a similar exemption to a small evangelistic school, Wheaton College. What happens next week and beyond?
The original concept of the founding fathers was that all people with a basic education were capable of intelligent voting; that they would vote their self-interest and in this process vote for what is best for the new United States. Is this concept true? Unfortunately the answer is negative. A goodly percentage of the people are totally wrapped up in their own lives so that politics is outside their range of consciousness except during major elections. Many others vote their prejudices rather than their interests. All this means is that a large number of people are inclined to be influenced during major elections and ignore the process during non-presidential elections. It also means that clever advertising can determine the outcome of elections in the United States.
On April 2, 2014, In the Case of McCutcheon v. the Federal Election Commission, the Supreme Court by a vote of five conservative judges to four liberal justices struck down the provisions of federal law aimed at limiting the influence of donors as curbs to free speech.
Even though most industrial nations limit the amounts that can be spent in individual election the U.S. has now taken the opposite position. In the 2012 Presidential Election some eighty plus millionaires and billionaires contributed the bulk of the money for the Republican candidates. While these people are exercising their free speech by contributing billions of dollars, those who can only afford to spend well under $100.00 have a much smaller ability to exercise their right of free speech. While money cannot directly buy elections it can strongly influence them. This type of ruling allows the United States to become a government of the rich, by the rich, and for the rich.
The state of Massachusetts by law drew a 35 foot buffer around abortion clinics. Its purpose was to protect clients going to these institutions from harassment and obstruction. The Supreme Court struck down this law as a violation of free speech. Originally the law was passed because antiabortion protesters literally blocked patients from entering the clinics. Offering a middle ground in these sidewalk battles often waged outside women’s health facilities all nine judges agreed that the no-talking and no standing zones were unconstitutional and unnecessary. A narrow majority affirmed that cities and states have the power to prevent or arrest protestors who are obstructing clinics or harassing patients. With the support of the liberal Judges, Chief Justice John G. Roberts Jr. sought a compromise that protects both free speech and a woman’s right to a legal abortion.
It is interesting to note that a similar right to free speech in terms of the Supreme Court itself still does not exist; the buffer zone still exists around the Supreme Court which has its own buffer zone within and around its building in Washington, D.C. “No person shall engage in a demonstration within the Supreme Court building and grounds.” The word “demonstration includes picketing, speechmaking, marching, holding vigils or religious services, and all other forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is likely to draw a crowd of onlookers. However in the case of protecting women, entering a female health center presumably for an abortion, from verbal and physical abuse the buffer zone is illegal.
In the case of the National Labor Relations Board v. Noel Canning the Supreme Court interpreted the breath of President Obama’s authority to make appointments during Senate recesses. This deals with the “advice and consent” clause of the Constitution, whereby the Senate consents to presidential appointments.
What has happened of late is that a hostile number of Republican Senators have either refused to confirm presidential appointments or have filibustered them, not allowing any action to be taken on the appointment. The Supreme Court rule of June 26, 2014 greatly limiting the ability of President Obama and future presidents to use recess appointments to circumvent congressional appointments to their judicial and executive nominees. They ruled unanimously that Obama exceeded his power under the Constitution when he filled three federal positions while the Senate was on a brief break.
The Justices upheld the basic right of the president to make recess appointments during a Congressional recess, a power which is granted by the Constitution and has been used by every president since George Washington. The issue seems to revolve around a ten day recess. Obama made his appointments after a three day recess.
Since November of 2007 the Senate has used a tactic called pro forma sessions to keep from going into a formal recess for longer than three days. No business is conducted during these sessions and only one senator is required to gavel the session open.
Initially the founding fathers, when they wrote the Constitution, wanted a check upon the president. The recent Congress was elected in 2010 and 2012. They are led by the Tea Party Republicans and have continually tried to hamper everything the President has tried to do. The legislature has engendered a policy of extremes, without any possibility of any cooperation. Will other presidents undergo the same plight? Probably if they are black and belong to a different political party.
There are numerous other cases that the Supreme Court dealt with in 2014. In the case of Schyette v. Coalition to Defend Affordable Action the Court decided that states could restrict their use of Affirmative Action programs in university admissions and other public institutions. A divided Court upheld the Environment Protection Agency’s Cross State Air Pollution Rule. A short prayer at public governmental meetings was upheld. Cellphone privacy was upheld, now a search warrant is required. These are many of the decisions reached by the Supreme Court mostly at the end of their 2014 session.
Next year some of these may be overturned or strengthened depending upon the makeup of the Court.