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Jewish World Review June 29, 2012/ 9 Tamuz, 5772 Our Supreme Court Has Lost Its Honor By Roger Simon
One branch now rules American life. It is the Supreme Court, and it consists of nine people elected by nobody. They rule for life. Their power is absolute. To overrule them requires an amendment to the Constitution, a process so politically difficult it is nigh on impossible. (The most recent amendment, the 27th, which deals with congressional salaries, took 203 years to ratify.) Technically, the justices can be removed from office for high crimes and misdemeanors, but none ever has been. There is no aspect of American life — from civil rights, to sports, to guns, to religion, to sex — over which the justices have not exerted control. There are no qualifications to serve on the Supreme Court. Though the Constitution lists qualifications to become a president, a senator or a representative, none are listed for the high court. The justices need not be of a certain age or have been born in the United States or even be a citizen. They do not have to be lawyers, though all have been. (Some, however, never went to law school.) You could be a justice of the Supreme Court. I could. Justin Bieber, age 18 and a Canadian citizen, also could be, though Senate approval would not be likely. The greatest power the justices have is carved into the marble of the Supreme Court Building and gilded in gold: "It is emphatically the province and duty of the Judicial Department to say what the law is." These are the words of John Marshall, the fourth U.S. chief justice, writing in 1803. His decision established forever that the Supreme Court had the right to uphold or strike down laws passed by Congress. Nowhere in the Constitution is the Supreme Court given this power. The Supreme Court took it in a 4-0 decision. (There were only six members on the court at the time, and two were sick.) The Supreme Court would, over its history, come up with some terrible decisions countenancing slavery, locking up Japanese-American citizens in camps, supporting "separate but equal" segregation and approving the forced sterilization of the mentally ill. But these were anomalies. Overall, the court would help create a vibrant and free society where citizens could live under the rule of law, where nobody was above the law and where equal rights were promised to all. For much of modern times, the court has been seen as being above politics. This was very important as a balance to its vast power. Even though justices were appointed by political presidents and approved by political senators, their own politics was to be suppressed. We realized they were human beings with political opinions, but we expected them to put those opinions aside. And then came 2000 and the court's 5-4 decision that made George W. Bush the president of the United States. The decision was nakedly political. "The case didn't just scar the Court's record," Jeffrey Toobin wrote in The New Yorker, "it damaged the Court's honor." Its honor has never fully recovered. Our current court is led by Chief Justice John Roberts, who was appointed by Bush in 2005, after having worked on Bush's behalf in Florida in 2000. The signature of the Roberts Court, Toobin wrote, has been its eagerness to overturn the work of legislatures. This is hardly conservative doctrine, but today politics trumps even ideology. In Citizens United v. Federal Election Commission, the court "gutted the McCain-Feingold campaign-finance law," which amounted to "a boon for Republicans." On Thursday, a 5-4 majority of the justices upheld the major provisions of Obama's health care plan, which was passed into law by Congress. Two branches of government had spoken, but their speech was but a whisper compared to the shout of our high court. The immediate political analysis offered by many was that this is a huge political boost for President Obama. But President Obama had nothing to do with it. He was a spectator, huddle around his TV set watching the decision like the rest of America. The major legislative initiative of his presidency survives, but it survives because of a power that was totally out of his hands. Liberals will call the ruling nonpolitical, conservatives will call it very political. The court remains as it has been: It can be as political or nonpolitical as it wants. Justice John Paul Stevens, now retired, wrote in his dissent in Bush v. Gore in 2000: "Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law." That is a lot to lose.
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