The crises occurs because each political party wants to stack the court with jurists they feel will be sympathetic to their positions.  But unlike elected people in congress or the president, no one can predict when an opening will occur on the court.  We know the president may be changed every four years, senators every six, etc.  Once a justice is chosen for the court, they remain there for life or unless they voluntarily retire.

Here’s my proposal: Congress should change the law and require justices to retire at age 70—or in line with our aging yet healthy population—age 75.  This change would have several advantages to fix the Supreme Court.

1.  Both Republicans and Democrats would know exactly when a justice’s term is done.  There would be time for the parties to prepare candidates for the court on a regular basis.
2. Both parties know the court will change regularly as the justices are forced to retire.  So, there will be an automatic rotation of new people coming onto the bench and less catastrophic crises.
3. Even though people are living longer and can retain their physical and mental health, it does get more difficult for older people to stay sharp.  By forcing younger people onto the court, we can be assured they’re competent.  This could help to fix the Supreme Court.
4. Many state courts have a mandatory retirement age of 70.  Some state court judges have even gone to the U.S Supreme Court to argue this is wrong.  The Supreme Court ruled that a mandatory retirement age was constitutional.  Why not apply that to the U.S. Supreme Court itself?
5. Right now, presidents get the opportunity to add many people to the Supreme Court.  With mandatory retirement, presidents would get several choices.  This would fix the Supreme Court by giving both political parties many candidates to rotate on and off the court.
6. It would give fresh, new people and ideas a chance to be on the court.  Now, many of the justices serve for decades and never change their ideas in any significant way.

If you want to read more about the idea, here’s a good article from “Fix the Court.”  It’s a little older, so some of the people they refer to have already gone on the court, or not.

FTC Op-Ed: A Mandatory Retirement Age for Supreme Court Justices

The post Here’s How to Fix the Supreme Court appeared first on Colin T. Nelson.

Most tourists visit the capitol and and the White House.  Very few stop at the Supreme Court.  (It sits across the street from the capitol)  So, if nothing else, it won’t be crowded and is worth the time to tour it.  Here’s what impressed me about my recent visit:

1. Constructed in the 1930’s, the present building is almost identical to the Parthenon in Athens, Greece.  It’s the same shape with columns in front of a wide series of marble steps that lead inside.  Once inside, it resembles the Parthenon also with a long, rectangular room and more columns along the sides.  Everything is made of bright white marble.
2. Instead of leading to the statue of a Greek god, the hallway leads to a small courtroom.  There’s an audience area facing a semi-circle of judicial seats—nine of them.  Other than a few offices and conference rooms, that’s all there is to the court.
3. Justices are appointed for life without any mandatory retirement age.  Hopefully, this gives each of them independence from political and social influences.  Often, after sitting on the court, a justice will change his/her philosophy and rulings that are contrary to what people expected from the justice when first appointed.  (Keep this in mind when the politicians and media worry about who goes on the court)
4. There’s a short and informative film you can watch that details how the Supreme Court works.  Contrary to the public’s understanding, there is no constitutional right to have the Supreme Court decide you case.  In fact, they only hear less than 5% of the requests for judicial review.
5. Here’s how the the Supreme Court works:  each justice gets a copy of the lawyer’s brief (written arguments) prior to the public hearing in the courtroom.  After questioning the lawyers, the justices file into a beautiful wood-paneled conference room.  They are alone in there without even their clerks.  Each justice must tell the others what he is thinking about the case.  No one can respond a second time until everyone else has the opportunity to speak.
6. If it appears that a least five justices can agree, sort of, on a decision one of the justices is assigned to write the majority opinion.  The other justices may join in later or may disagree and write their own opinion.  What impressed me about how the Supreme Court works is that one justice cannot dictate to the others what the decision should be.
7. All of the justices interviewed in the film expressed how serious and important their work is—without any mention of partisan politics.

If you get to Washington D.C. a tour of the building is quick but impressive and will give you a good idea of how the Supreme Court works.

The post How the Supreme Court Works appeared first on Colin T. Nelson.

Does this really make sense?

In the decision of Roe vs. Wade the Supreme Court “found” rights, not written in the constitution, but hidden in between the lines . . .   Ever since, conservatives went nuts, with understandable reason.  The democrats pushed-back.  Now we always have a stand-off whenever a new justice will be appointed.  With the death of Justice Scalia and an election year, the process will be worse.  Many people fear the selection of a new justice will either support the future of the country or destroy it!!  (We have presidential candidates warning that the future existence of America depends on the correct selection of one man/woman!)

Is this concern blown out of proportion?  What would the ghost of Justice Scalia say?

I could write for pages on this.  Instead, I’ll tell you the story of a former justice and his record.

When Dwight Eisenhower became president in 1952, he owed favors to many people.  The governor of California, Earl Warren, had made the nominating speech for Eisenhower at the Republican convention.  Warren was instrumental in gaining support in the west for Eisenhower.  Warren started his political career as the prosecuting attorney in Oakland, California.  A law and order man if there ever was one.

Eisenhower chose Warren for the supreme court assuming Warren would continue his “law and order” philosophy.   He would rule for the conservatives.  Warren went one to become the biggest champion of criminal defendant’s rights in the 20th century.  He ruled quite often contrary to what conservatives expected of him.  Eisenhower later said that his appointment of Warren was “the worst damn decision I ever made.”

William O. Douglas had been the chairman of the Securities and Exchange Commission—at the center of big government and big business.  Yet, he became the greatest champion of environmental rights—against the interests of big business quite often—of the 20th century.

Here’s my simple point:  No one can predict what a person appointed to the Supreme Court will do in the future.  All the questioning and political maneuvering could mean nothing.  Instead, let’s pick a person who is qualified by their legal experience—not for their “potential” political ideas.  The ghost of Justice Scalia may even laugh if we dropped all the political posturing in the selection process.

The post The Ghost of Justice Scalia appeared first on Colin T. Nelson.

His argument is simple—even after the House of Representatives, the Senate, and the president (all elected) finally decide legislation, a small group of un-elected lawyers on the Supreme court can kill the new law.  Is this good for democracy?  Is it even a form of democracy?

I agree with his concern.  Have there been any times when someone has stood-up to the Supreme Court?  I can think of two.  If you have more examples, let me know!

1.  In 1830 Congress passed the Indian Removal Act to force tribes in the southeast U.S. to move and go west of the Mississippi River.  The Supreme Court heard arguments against the law from the tribes and said the tribes could not be removed.  President Andrew Jackson disagreed and is reported to have said, “Let the Supreme Court get an army and stop me!”  He sent the U.S. army into Georgia and forced the tribes out in a march that became known as the “trail of tears.”

2.  In 1937, President Franklin Roosevelt wanted to add more people to the Supreme Court in hopes they’d rule in favor of his legislation that had been passed by congress.  The president was unsuccessful in his efforts to “pack” the Supreme Court.  He didn’t directly challenge their power to kill laws, but he clearly understood the power and didn’t like it.

Why do American citizens go along with this undemocratic tradition?

1.  We certainly need a final court to settle disputes between citizens.  We accept this role of the Supreme Court.

2.  The power to kill laws has been in place since 1803—time has a way of turning things into concrete.  It’s difficult to change now.

3.  In some things, the country needs a “final decision” in times of great disagreement about big issues.  The Bush vs. Gore dispute arose during the presidential election of 2000 and is a great example.  The vote totals in Florida were in dispute as to which candidate won the most votes in the state.  The presidential election hung in the balance—as the whole country waited for an answer.  The Supreme Court poked its nose into the controversy and made a final decision—George Bush won the state of Florida.  That decided the entire election.

Think about this:  even thought millions of American voters cast their ballots for presidential candidates, a few un-elected elite people on the Supreme court decided the election for us.

Should we get rid of the Supreme Court?

The post Should We Get Rid of the Supreme Court? Part II appeared first on Colin T. Nelson.

Here’s an interesting look by Isak Tranvik about the Supreme Court and democracy. http://www.startribune.com/how-the-supreme-court-dilutes-democracy/305911741/  He argues that allowing a small elite, un-elected group of lawyers to decide the fate of legislation is not democracy and the will of the public as expressed through their elected representatives.  How did we get to this point?

In human history we’ve always needed a detached, independent group to decide disputes:  who’s at fault?  Who owes the money?  Who’s been illegally fired by an employer?  We still need this function from our court system.  But early in American history, something unusual happened.

I know this sounds ancient, but hang in there with me.  In 1803 the Supreme Court decided the case of Marbury vs. Madison.  For the first time in the new democracy, the Supreme Court said it had the power to review legislation to determine if it agreed with the Constitution.  If the laws didn’t, the Supreme Court also had the power to over turn the new laws.

Where did this power come from?  The Supreme Court itself said it came from Article III of the Constitution.  In reality, the politically opportunistic chief justice, John Marshall, made it up—but no one challenged him!  The principle remained there to create the monster we have today.  And we all still accept it.

Tranvik, in his article, uses an example—the Affordable Care Act.  (Obamacare)  Whether you agree with it or not, the legislation has been worked on, argued about, and finally passed after several years.  Thousands of citizens and elected representatives took part in this process.  The Supreme Court will make a decision which could kill the entire program.  A handful of un-elected, elite lawyers will control the outcome all by themselves.

Is this fair?  Is it good for democracy?  Is it even democracy?

Next post—Has anyone ever tried to stand-up against the Supreme Court?

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