Robert F. Jakubowicz: Making Supreme Court as dysfunctional as Congress


PITTSFIELD >> There is a sweet irony to Senate Majority Leader Mitch McConnell's call for the people to "have a voice" in the appointment of a justice to fill the vacancy on the Supreme Court caused by the death of Justice Antonin Scalia. Scalia was the self-styled court champion of original intent and it is quite clear that the Founding Fathers originally intended to shield the appointment of justices from a direct say by the people.

As originally written in the Constitution, Supreme Court justices were to be chosen by the two federal branches removed from direct contact with the people. The president, elected by a process of state electors and thereby removed from a direct vote by the public, nominates justices subject to the consent of the members of the Senate, selected originally by the legislators in their respective states which also removed the senators from a direct vote by the populace. A 1913 constitutional amendment changed the selection of senators to today's method of popular election.

Politics intrudes

I am certain that McConnell hopes that the new president will be a Republican and that if his party maintains its majority in the Senate then it will be possible to fill the court vacancy with a justice prone to deciding cases along conservative ideological lines. Unfortunately, the Democrats seeking the presidential nomination also hope to continue this politicization of the court. They both have vowed, that given the opportunity, they will nominate justices who would vote to reverse the Citizens United decision.

This politicizing of the court has made it the dominant of the three branches The court through its self-announced power — not stated in the Constitution — of having a final say on what the law is has been a key factor in many important public policy matters from the Dred Scott decision, which by essentially preventing Congress from enacting a compromise measure to limit slave ownership became a contributing factor to the run-up of the civil war, to the Bush v. Gore decision that helped elect George W. Bush president. If the Founders had envisioned such a role, they would have written much more about the court in the Constitution.

While there is extensive detail about the roles of the executive and legislative branch in that document, there is little detail about the court's role. There is an absence of such basic matters as the qualifications of the justices, their number, and the extent of their terms.

Alexander Hamilton, a participant in the convention drafting the Constitution and a signer of that document, wrote an essay in the Federalist Papers that gives some insight into what his intention as one of the Founders was regarding the makeup of the court justices and what their role would be.

Hamilton foresaw that the people would have to deal with a voluminous set of laws to protect their rights, and that this would require a group of people with a competent knowledge of these laws. He envisioned that this group would consist of only a few who could make proper decisions based on such knowledge. He added that among this group there would be even fewer with the integrity to serve as the intended justices.

Unfortunately partisan politics got in the way of presidents and senators finding and picking these scarce individuals as justices. Instead, it is now a matter of routine to find justices who are likely to decide cases favoring the policies of the Capitol Hill politicians who have a say in picking them.

As politicized as this system has become, it, at least until now, has been working in resolving public policy issues, albeit with a lot of divisiveness and anger. But now the Republicans, from McConnell and some of his party colleagues in the Senate to the Republican candidates for the presidential nomination, have publicly vowed that the GOP majority in the Senate will not take up any nominee proposed by President Obama. This sort of inaction threatens to cause the court to become as dysfunctional as Congress.

New equation

Prior to Justice Scalia's death, there were four liberal justices and four conservative justices, including Scalia, and one swing vote, Justice Kennedy, who joined one or the other side to form a majority. This equation of justices for better or worse worked. But will the new equation work? If Kennedy joins the four liberals, the court's decision will prevail as a precedent, but if he joins the three conservatives the lower court decision that was appealed from will stand.

The president and the Senate now have an opportunity to try to find the kind of justice, not a liberal or conservative, envisioned by Hamilton, whose addition to the court just might start the process of depoliticizing it. The Republicans should hold hearings on any nominees submitted by the president and not threaten to make the court dysfunctional.

Robert F. Jakubowicz is a regular Eagle contributor,


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