Post # 381  SCOTUS AND INTERMITTENT JUSTICE

The Supreme Court of the United States (“SCOTUS”), the highest and the final authority on federal legal issues, and the top tier of the Judicial Branch of our Government, (Congress and the Presidency, constituting the other two Branches of Federal Government) has been an institution which, by its significant and august role, should be deserving of the dignity and stature afforded to it by literature and National tradition. It has been the beneficiary of some of the most brilliant and reverenced Americans, such as, Holmes, Cardozo, Marshall, and Frankfurter and some less so. It is to be borne in mind that U.S. Supreme Court (SCOTUS) Justices are politically appointed and confirmed, and that accordingly, these life-time appointments may be selected on the basis of their political leaning, rather than their legal scholarship or judicial erudition. In general, most of the Justices, historically, have proven to be capable jurists, and have rendered legally supportable, and usually just decisions.

We have employed the words, “…Intermittent Justice,” in the title of this essay for the reason that, as will be shown, SCOTUS has rendered, both the most significantly heroic and truly American decisions, as well as some which, as we see it, tear at the fundamental American tapestry of democracy and justice. The two examples of deplorable decisions, one, providing the main theme of this writing, will be referenced below, as will the two cases exemplifying American rectitude.

In 1857, Justice Taney of SCOTUS, rendered, inarguably, the worst and most deplorable decision in American jurisprudence. In that case, the Court held, with regard to a runaway slave, Dred Scott, that the “owner” could recover the slave because negro slaves were just “chattels”, viz., agricultural equipment. Fortunately, this repulsive decision, was overturned by later cases, but is a demonstration of the atavistic and inhuman capability of SCOTUS. The particular SCOTUS decision, which prompted this writing, will be discussed at its end.

We would cite two decisions, rendered by SCOTUS, which were eminently just, and in keeping with our Nation’s tradition of liberty and equal justice. The first decision is the historically significant and praiseworthy, 1954 case, of Brown v. Board of Education, wherein SCOTUS ruled, to the applause and relief, of all right-thinking Americans, and to the dismay of segregationists, that, legally, and in fact, “Separate is not equal.”   This positive case had far-reaching and major impact on our society, and has been constantly in the process of universal application.

The second SCOTUS case we would cite, as another example of justice and the exercise of right reason, is the 1977 decision of Rowe v. Wade, in which, it was determined that a women’s right to privacy, under the 14^th Amendment, gave her the right to choose an abortion. Privacy and the rights of an American citizen to be free from the religious strictures of others, was upheld. Disappointed opponents of the Rowe decision, have been attempting to frustrate the woman’s recognized (and natural) right of choice, for decades

If SCOTUS deserved credit, for its many decisions, protecting the rights of minorities and effecting justice where the Nation needed it, such credit will have been totally negated, by the infamous and extremely puzzling, 2010, Citizens United Case.

Preliminarily, it should be stated that the Supreme Court, being only one of the three branches of government, would traditionally, properly and by precedent, refuse to accept a case for determination, if the issues in question were “political,” or had political implications. The reasoning was sound, as being based upon the fundamental Constitutional provisions for a discreet “Separation of Powers,” an American sacramental principal. Litigants were, routinely, and historically, denied access to the highest Court in the land, for this sacrosanct purpose.

The more recent decisions of the Supreme Court, in cases such as Gore v. Bush, seem to show a current disregard for the precedential law, the legal purpose of which, was to enforce the American foundational theory, of Separation of Powers. We continue to remain confused and shocked. Our concern and disappointment is based upon our unhappy observation, that the highest legal arbiter of American issues of concern, has become political, and possibly partisan. We are greatly disturbed when both political parties seek to install Justices who favor their respective views. This, undoubtedly, is the etiology of the present unsound health of SCOTUS.

An extreme, but true to life example, of the unfortunate and dangerous decline of the traditionally revered, SCOTUS, is the 2010 anomaly known as “The Citizen’s United” case. The sophomoric reasoning in the case, by intellectually gifted jurists, is more worrisome than confusing.

In the Citizens United case, the Court held that a Corporation is a “person,” and as such, has the legal right to contribute as much money as it chooses under the 14^th Amendment, which grants all citizens, the right of free speech.  This is not only erroneous and unjust, but is the main impediment to our democratic system. At the very least, the unlimited franchise to pour money into an election, would naturally tend to artificially and corruptly, skew the result away from the impact of individual votes. But this disgraceful and undemocratic decision, besides destroying the principle of one man, one vote, and, instead, electing government by donation of money, is the subject of completely spurious explanation.

Every law school freshman knows, that a “Corporation” is a fictional, concept, created by law (going back to the English Parliamentary Statutes of Elizabeth) for the purpose of limiting liability. Thus, an entrepreneur can do business, contract, sue and be sued in the registered corporate name; if the business failed, he would not become a pauper, since he could simply cease doing business under the fictional corporate name. The entrepreneur was free since the debts were owed by the fictional entity or “person,” the Corporation. The laws are identical in every State of the United States, where the “personhood” of a Corporation is limited to its use for contractual or litigation purposes. It is ludicrous to conceive that this fictional concept, this commercial vehicle, is a true person with rights under the 14^th Amendment or otherwise; it is statutorily defined and limited “person” and bears the understood and limited status, expressly, as a “fiction,” created for the sole purpose of commerce.

What is truly terrifying, is the realization that, as every law school freshman (and most business people) know that a corporation is not a living, breathing person, with the right of free speech, (but only a statutory “person” for certain very limited, procedural, commercial reasons) most certainly the eminent SCOTUS Justices, and their minions certainly know it. We are fearful lest political considerations rather than law, sadly, may be behind this mystery. It may also be asked, who has ever considered the (unlimited) donation of moneys to an election, free speech?

SCOTUS is morally and constitutionally, duty bound to protect our Representative Democracy, not injure it, as it has; and, moreover for the highest Court in the Nation, to do so, upon sophomoric and ludicrous reasoning, leaves us in a state of confusion, and in a sudden deep concern for our Democratic Republic.

-p.