The 19th Century architects of our Constitutional government romantically referred to as “America’s Founding Fathers,” designed three separate and independent organs of our body politic, executive, legislative and judicial, legally described as, the “Separation of Powers.” The continuous status of a legitimate and authentic Constitutional Republic, was assured by making each component of this triumvirate, independent of the others but, nevertheless, affording to each such independent body, the jurisdiction to restrain another for actions in excess of, or inconsistent with, the Constitution (“Checks and Balances”). Nevertheless, the Judicial Branch, headed by the Supreme Court (SCOTUS) was designated the final arbiter of legal issues permissibly brought before it, and hence, the ultimate guardian of the established system of governance and the acknowledged rights of American citizens.
For centuries, SCOTUS was looked upon with great pride and reverence as the executor and trustee of the democratic provisions, enshrined in the Constitution and bequeathed to the new Nation, by its idealistic creators. Its rulings, as designed, protected citizen rights against potential infringement by government, and in relevant cases, against the tyranny of the democratic vote. As our culture rationally evolved, the concept of equality, appropriately, became applicable to all, slavery was considered a shameful nightmare of American history and our Nation, became a comparative showcase to older, established Nations; empirically demonstrating that liberty and democracy for all, was possible. This was the case, at least, until the past two decades.
The popular general reverence for SCOTUS, (with a few exceptions) especially by students of jurisprudence and law was virtually religious. Especially memorable, and iconic scholars often populated the high bench, such as John Marshall, Oliver Wendell Holmes, Louis Brandeis and Felix Frankfurter. However, in our view, the most salient example of great wisdom, fairness and juristic acumen, was Benjamin N. Cardozo (term, 1932-1938). What truly established Justice Cardozo, as our incomparable favorite among all the fine justices who sat on SCOTUS, were two factors. In addition to his outstanding juristic acumen, was the literary brilliance, expressed in his wise legal opinions, in the exalted and aesthetic level of Emerson and Edmund Burke, and, importantly, his foresighted view that the interpretation of written law, specifically, the provisions of the U.S. Constitution, should evolve and adjust with the times (“Sociological theory of Jurisprudence”). The chosen language of the Constitution, is, observably, general, thus inviting contemporary interpretation. We have noted that, in matters of interpretation, those who worship “original intention,” predictably, have some personal ax to grind advocating anachronistic societal views, relevant to the times when rich gentry wore white powdered wigs.
Unhappily, our former reverence for the SCOTUS (analogous to our disenchantment with the Presidency of Donald J. Trump) has materially declined, as recounted in previous writings.
The “Separation of Powers” construct, as enshrined in our Constitution, mandates separate functions for each of the three branches of government. This legal design is no less than the underlying foundation supporting our constitutional architecture. The legislature passes laws, the President exercises executive authority, the judicial system adjudicates disputes. This design, together with the mutual right of “checks and balances,” ensures the proper administration of our Democratic Republic, as designed and practiced; at least, until recently.
To assure such fundamental separation, SCOTUS has historically required a procedure known as the “Motion for Certiorari,” as a mandatory and preliminary step to the acceptance of cases by SCOTUS, for consideration. In that procedure, desirous appellants must demonstrate, the appropriate significance of their case, and crucially, make a determinative showing, that their case is not political, to the very degree that there can be no indirect effect of any possible determination upon any political issue. It has been “black letter law,” that any perceived political effect of the case will absolutely, and without exception, result in a denial of acceptance for by SCOTUS.
That is, until twenty years ago.
The BUSH v. GORE case, (2000), dealt exclusively with a dispute as to the correct count of political ballots, and inarguably was a political case. It was in unprecedented and erroneous fashion, accepted, and a President determined (Bush) as winner, by SCOTUS. Can anyone rationally argue that said case was non-political? What happened to bypass centuries of consistent legal precedent?
The CITIZENS UNITED case, (2010), witnessed an even worse abdication of the statutory certiorari principle, purposed, as stated, in mandating an unmovable roadblock to cases which had a political resonance to any degree. In fact, the issue involved the limitation in amount of political (?) campaign contributions by corporations. The decision, in our opinion, ranked in disrepute only second, compared to the shameful, DRED SCOTT decision (in which Justice Taney, ruled that a black runaway slave, was agricultural property, rightfully restored to its owner; soon, thereafter, [mercifully] overturned.)
The CITIZENS case is particularly despicable, not only for its destruction of the basic architecture of Separation of Powers but for its ultimate destruction of representative democracy. Its determination was, that a corporation is a “person,” and as such, is not subject to limitation in monetary political contribution, under an individual’s First Amendment right of free speech. This was the shameless result of a (Republican) majority of the bench, effectively advantaging the wealthy, self-interested, mega- profit-making intentions of big corporations over individual voters, and thereby, destructive of the individuals’ right to an impactful vote and constitutes a democratic travesty.
In addition to existential damage to our Democratic Republic, for which, history demonstrates the great extent of paid sacrifice, the decision is inarguably motivated by political considerations, and the expressed reasoning (for a Court which once saw a Cardozo or a Holmes) is sophistic and less than sophomoric.
Every freshman in law school knows that a “corporation” is merely a fictional entity and not a real person, (originally created by Parliament, in the days of Elizabethan England, and debtor’s prisons) to avoid personal liability for business debts, and to encourage entry into commerce by entrepreneurs. Today, a business enterprise that complies with simple State filing and tax procedures, as a fictional person, may operate in its corporate name, like “Coca Cola Co.” or “Macy’s,” enter into contracts, sue and be sued in that corporate name; but the registered corporation, certainly, is not an extant “person,” living and breathing, with Constitutional rights. One can reasonably assume that, if law school freshmen and most businessmen know it, SCOTUS, certainly does.
These frustrating and disappointing outcomes, show an evident and unconstitutional decline of The United States Supreme Court, from an avatar of assured democracy to a disappointing entity, with the majority (Republican) of SCOTUS, governed by political influence. One hopes that the coming election will reverse the current (Trump) atmosphere, and return our Nation to its traditionally democratic existence, as the showcase of democracy. We at plinyblog.com have a constructive suggestion.
We, unanimously, enthusiastically, and in the spirit of Justice Benjamin N. Cardozo, wish to be the very first (unsolicited) to nominate Hon. Barack H. Obama, as the next available Justice of United States Supreme Court.