Posted by
Silence DoBetter on Saturday, August 25, 2007 1:25:30 PM
08.07.2007
Recently, a fallacious argument has been presented in favor of packing the court. Whereas manipulating the size of the court is a legitimate means of checking power, any proposal to do so must be grounded in sound understanding of our constitutional framework and justified with specific grievance. In the July 26 issue of the New York Times, Jean Edward Smith has succeeded in demonstrating the historical legitimacy of the maneuver, but has utterly failed in supplying just cause for his proposal. Mr. Smith states: "there is nothing sacrosanct about having nine justices on the Supreme Court... 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."
The primary purpose of the judiciary is to facilitate a mechanism for politically impartial administration of the law. In the case of the federal judiciary these duties are augmented with the supreme objective being to implement impartial clarification of constitutional intent. Improving upon the parliamentary systems of the past, the patriarchs of the constitution were particularly concerned that the power charged with enforcing the law be distinguished from the power verifying violation. Extension of judiciary duties outside the intended structure generally disrupts the attuned separation of power at the root of our constitutional order, and depending on application, may usurp the power of the legislature or the executive. The primary harms of such action include an entanglement of power jurisdiction, and a corresponding suppression of the people’s representation.
Historically, there have been several concedable reasons, girded by a popular understanding of the American political order, granting just cause for judiciary adjustment. First, to check the power of the court itself, as a correction for entanglement in political matters. Second, to shore up the executive in times of war. Third, in an attempt to check the power of a third branch, though this is difficult considering the remaining branches bear instrumental involvement in the action. And fourth, to correct a court that is disregarding general understanding of the limitations and responsibilities of the federal government, as expressed by popular representation. More subtle court oscillations are best achieved through the standard presidential nomination and senatorial approval process.
Judicial transformation is inherently the most gradually evolving mechanism within our existing political order. Our constitutional framework is often abstracted as a system of checks and balances. The House, being elected most often and by the greatest width, is checked by the Senate, which represents narrower power and overturns more slowly. Likewise, the House checks the Senate's power through rapid adaptation. The court, by design, affords justices lifetime term limits within the practice of good behavior. The natural term limit acts as a check on the power of the House, the Senate, and the Executive. Deriving from this maturity, the court manifests a multi-generational interpretation of constitutional understanding, and buffers against temporal flights of fancy from the electorate as well as high power institutional organs.
A commonly cited example of court manipulation absent just cause is Franklin Delano Roosevelt's attempt to "pack the court" with justices favorable to his social policies. This endeavor was widely viewed as an imperial attempt to press forward his policy agenda against a multitude of objections. Despite achieving a significant portion of his platform, FDR failed to secure unprecedented policies specifically ruled unlawful by the federal court. Annoyed by the inconvenience of the democratic process, FDR devised a plan to elude the constitutional roadblock. With control of both chambers of congress, President Roosevelt presented a measure to commission an additional six justices to indulge his interests. By expanding the number of justices to fifteen, he’d attempt to skirt the constitutional restrictions by reconstructing the mind of law.
When FDR made public his intentions he was immediately faced with significant resistance. Unfortunately for him, the criticism was not only from the Republican opposition, as even essential allies in his own party withdrew support in disgust. As an obvious infringement upon the liberty of the people, the citizens stood in vehement disapproval. His intentions were referred to by the senate judiciary committee as "a needless, futile, and utterly dangerous abandonment of constitutional principle..."
Despite Mr. Smith's intention to frame his prescribed policy as a plausible solution to a "five man majority", common sense renders his casual proposal adding "a justice or two" a feeble attempt to rationalize court packing for political gain. Reminiscent of FDR's attempt, Smith's plan would directly threaten the liberty of all citizens and undermine the founding principles of our civil balance. In 1937, the popular discourse of the era referred to FDR's methods as akin to those of the tyrant contemporaneously consolidating power across the Atlantic. Mr. Smith's proposal would rightfully suffer a similar fate. As Montesquieu observed in "Spirit of Laws", "there is no liberty, if the power of judging be not separate from the legislative and executive powers." Hamilton furthered the argument: "as liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with the other departments... from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches."
Jean Edward Smith's "popular values" must be referring to the values embraced by New York and Hollywood elite. For those of us submerged in common society, the "popular values" presented in today’s media often differ from the values of American families, their peers, and local communities. His scholarly work may be well regarded, but perhaps due to a poor comprehension of the current pulse of American society, Smith's appeal to "popular values" emerges as an attempt to persuade citizens that a majority supports his doctrine of ideals, when in fact they do not. Smith fails to appreciate the current disconnect between a self-appointed, condescending, elite ruling class, and the average American. If Mr. Smith wishes to present just cause for packing the court, he needs to define the "popular values" to which he refers, as well as demonstrate the corrective relevance of the action. Until he does so, how are we to distinguish Mr. Smith’s proposal from FDR's?
~Silence DoBetter