When I was in law school, many of my professors echoed a similar mantra: “We are all students of the law. We all have something to learn.” This attitude was the idea that no matter where you were in the legal sphere, you could not be all knowing about the law – not even as Chief Justice. In other words, “no one is above the law.”
There was another concept that my professors taught me while I was in law school. No one stated the exact same thing twice, but all echoed essentially: “A law is not a law if it is not written down, and it is not a law if the law does not have manifested enforcement.” In English that means if something is not made official (i.e. “written down”), and if something cannot be forced upon somebody against their will (i.e. criminals), then it is not a law. For practical purposes, if a concept is not officiated AND actually enforced through force of arms, then the concept is not law — it is at best a suggestion, a custom, or a tradition.
I learned extremely quickly from law school and practice as an Assistant State’s Attorney the notion that we are a “nation of laws” is a gross oversimplification of the United States. What we really are, in practice, is a nation of customs and traditions with a lot of laws. We are a nation of customs and traditions that want laws and order. Many of you here, I am sure, are very familiar with the term “de facto.” The counterpoint to “de facto” is “de jure,” which means “legally recognized.” A law. What we have in the United States, especially in government and legal practice, is a system of de facto practices that most people just comply with as a norm as though they are de jure. The majority of the time, this is completely fine. The majority of the time, everyone plays by the established playbooks. However, sometimes you just get someone who will say “well why should I do it that way?” And when that person is confronted, they will reply with, “or what? Who’s going to make me play by the rules? You?”
This is where we run into problems in the United States, and this is where we especially run into problems with the Supreme Court of the United States.
Before I can get into talking about the Supreme Court, however, I need to establish a few things of historical note – namely what was the original intent of the US Constitution and the SCOTUS’ purpose in the grand scheme of the Constitution. This is a long discussion that has befuddled everyone who has touched the subject and highlights the mantra, “we are all only students of the law.” Not masters.
As is to be expected with everything else in a democracy, the Constitution was a document written as an “officiated” compromise between the new 13 states of the United States. The Constitution was meant to compromise between principally: Federal vs. State Powers, Government Power vs. Rights of Individuals, and the powers of different branches of the Federal Government. Ideally, this compromise was meant to create a national government that could function independently from foreign interference and would try to attempt to preserve as many rights/freedoms/privileges/etc. for regular citizens as possible.
The Founders knew that in order to survive into the future, any Federal Government would be required to be capable of adapting and changing with the times to reflect changing realities of the future (the Founders knew that the world would look different in 2024 from 1789). They had to create a government that could change and adapt to new technology, warfare, growing populations, empires rising and falling, and still protect the rights of common citizens. In effect, this led to a lot of what the Founders created in the United States Constitution being more of a troubleshooter’s guide to democracy – as opposed to a comprehensive step-by-step textbook. There’s a reason that the US Constitution is only 4 pages long – The Constitution only supposed to provide a baseline.
Plainly spoken, the only real originalist argument you can make with regards to the Founders is that the Founders intended to make a government that could adapt over centuries to continue to govern for the people with the express consent of the people. In 1789, the US Constitution was the Founders’ best compromised suggestion of how such a government should look and function --- it was never intended to be a definitive end-all gospel document. The Founders intended the Constitution, and thereby the Federal Government, to be capable of changing. This is why the Constitution has provisions for adding, or removing, new amendments. This is why individual states are permitted to create their own laws that are in compliance with what the Constitution has expressly laid out. This is why we have never done away with the Constitution – we have never agreed upon a better compromise than the one we possess right now. And lastly, this is also why the “originalist” argument as applied by Constitutional Conservatives is balderdash. The “original intent” of the Constitution was to be a modifiable and expandable document that could and should be changed at any time to better reflect the realities of the current times in order to thereby better protect and preserve democracy.
What the hell does any of this have to do with the Supreme Court? I’m getting there, hang on.
There really is no provision of the United States Constitution that specifically states what actors must do to abide by the rules set forth within the Constitution. Worse still, the Constitution does not specifically state what actions actually represent violations of the Constitution. For example, Article III of the Constitution states that judges: “hold their office during good behavior.” Now you may think to yourself, “well that is perfectly plain-spoken. It’s obvious, even. Anyone would assume-,” and that is where I would cut you off.
There is ONE coveted rule in all of the legal realm that all practitioners of the law know better than anything else. “To assume makes an ass of u and me.” Never ever assume anything. This is where the law school mantra comes into play. If a law does not explicitly explain what is intended, then interpretations are fair play for bad actors to take advantage of. If a law fails to state something, anything omitted IS NOT LAW. We could assume the phrase “hold their office during good behavior” means essentially, “if you accept bribes or you commit crimes, then you should be impeached and removed as a judge.” Article III does not say those specific words, however. Ergo, such an assumption is not the law.
The law only says, “good behavior,” and leaves that concept undefined. The omission of the definition of “good behavior” creates the legal question: “what is good behavior?” Now, the Founders intended for concepts like this to be left open and undefined so that “we” would be able to define “good behavior” for ourselves in the future, which highlights the original intent to make the Constitution adaptable. For example, between 1920 and 1933 we might have deemed drinking alcohol as a violation of “good behavior” for justices vis a vis the Prohibition Act. Then after 1933 we could have changed the definition of “good behavior” again to reflect the end of Prohibition. Where the Founders intended for us to specifically follow certain steps, they left specific instructions (such as specifically stating Presidential terms only last four years). The vagueness was not an error – it was deliberate.
This all naturally leads us to the following question: “If the Constitution was meant to be deliberately vague so that we could define it for ourselves, who’s making the call on what the definitions are?” Enter SCOTUS and our problems. The Founders left behind several clues and indicators of how they felt the Constitution should be interpreted and applied – the Federalist Papers are the most popular example. Regardless, these suggestions by the Founders are exactly that - “suggestions,” not LAW. You can present the Federalist Papers as a suggestion of how a law should be interpreted, but who actually decides how the Constitution shall be interpreted and thereby makes one interpretation/opinion/suggestion the LAW? The Supreme Court does.
The Supreme Court is blessed by the Constitution with the power to interpret all of law by itself by analyzing whether or not xyz is “Constitutional,” and thereby determines as a matter of law what the Constitution actually means.
All of what courts do in general is interpret the written law as it is put into practice. If the law says that “murder is a killing of another human being with malice aforethought.” A court will then look at an accused murderer with regard to the law, ponder, and then answer: “Hmm what’s malice? Hmm what is it to kill? Does killing mean permanently stopping someone’s heartbeat, or can putting someone into a coma qualify? And what exactly is a human being anyway? Do all ethnicities count as human beings? What does aforethought mean anyway??? HMMM?????” Whenever you hear jury instructions being discussed, this is a court telling the jury what a law actually means. A court has the power to determine what words themselves mean within a law, thereby determining what the law is, all of which law enforcement agencies are bound to uphold under the Constitution.
Now consider that the Supreme Court reigns supreme over all other courts in the land, and now you will begin to see how the Supreme Court is actually the most powerful of all three branches of the Federal Government. The Supreme Court may not be able to levy taxes or command armies, but the Supreme Court has dominion over what the words of the law and the Constitution themselves mean. The Supreme Court wields literal 1984 Orwellian power to distort the meaning of words themselves (“War is peace, freedom is slavery, ignorance is strength”), and we are watching that dystopic catastrophe unfold before our very eyes.
It is important to consider that the Federal Government possesses the power potential of a full fledged 1984 Authoritarianism — it is merely that those powers are split into three competing branches of government, held to baseline standards of the Constitution, and empowered by the People’s consent (the vote). The Supreme Court has taken its third of that power potential and gone rogue.
What has reined in previous Supreme Courts have been concepts, such as stare decisis (the fancy word for “legal precedent”). Other Supreme Court Justices have been controlled, somewhat, by the idea that their new decisions have to be in line with prior decisions — they need some legal rationale to back up their conclusions. In practice, however, legal precedent itself is not an enforceable law to a governing body that has the power to... reinterpret and override existing law and legal precedents. ”Oh, that’s not what the Constitution means — it means whatever I want it to mean.” There is nothing in the US Constitution that states, “The Supreme Court is bound to whatever precedent it establishes on penalty of automatic impeachment and individual imprisonment,” or, “The Supreme Court is bound to find their decisions upon reasonable and rational law that would be upheld by an unbiased and discerning jury.” No. The US Constitution does not require the Supreme Court to base their decisions upon anything. From a “manifested enforcement” perspective, the Supreme Court can find their decisions based upon how much they enjoy the scent of Trump’s courtroom farts. Just observe the Trump Immunity case decision as proof. Legal precedent, tradition, human decency – none of these concepts are sufficient to rein in a Supreme Court. Those concepts are not even sufficient to draw a Supreme Court’s attention.
Never forget the Marbury v. Madison decision of 1803. Chief Justice Marshall (the namesake of my law school) ruled in favor of Madison in order to preserve the Court’s own power. President Jefferson (the boss over Madison) threatened to ignore the Supreme Court’s ruling if it did not rule in Madison’s favor by denying Marbury a government appointment. The Court elected to bar Marbury’s government appointment on a technicality in order to appease the Jefferson Administration’s threats, thus preserving the Court’s power to interpret law. Even from the very birth of the Court, it took an existential threat to its power for the Supreme Court to be bent in a direction it did not want to go in.
This was the point of the mantra at the beginning of this piece. Something is not law if it is not expressly written somewhere, and the Supreme Court (effectively) has the power to determine what laws actually say – putting their own opinions down on paper as enforceable law. This is how the Supreme Court can just give Trump immunity, overturn Roe, legalize bribery for itself, and etc.
There is no law that expressly states that the Supreme court cannot do these things. “But, Sinai,” you say, “what about impeachment? Removal? Surely, there’s something that can force the Court to get its act together.” That is where I would reply that right now there are no laws that can stop the Supreme Court. The Supreme Court has emphatically stated to us “or what? What are you gonna do to stop us?” At the moment, we do not have a viable answer that immediately and effectively answers the SCOTUS’ challenge, ergo there is no law at the moment that protects us.
I say this as a matter of fact because while there are bodies that should be ripping the SCOTUS to shreds for corruption, they are not. Look no further than the Republicans holding office in the House and Senate and you shall see why any legal recourse for the Supreme Court’s transgressions are currently beyond us. Were it not for the Republicans, we could impeach all six conservative justices today. We do not hold the seats necessary to vote out the fools making a mockery of our nation in an impeachment.
Biden could make a statement that he believes what the Supreme Court is doing is unconstitutional, or someone like Alexandria Ocasio Cortez could bring forward impeachment hearings, but none of that will bear any weight upon this Supreme Court. Even if Biden made a threat similar to Jefferson’s in 1803, this would only result in pandemonium as our own Democratic pundits would cry out that Biden was a fascistic dictator wannabe — further, that would only invite a potential future rogue President to disavow a potential liberal Court. Our government lacks any “manifested enforcement” that we can meaningfully crack the court over the head with to bring them in line. At the moment, the checks and balances of the Federal Government have failed.
Ergo, at the moment, the Supreme Court is supreme. They are technically untouchable. Technically.
This is where I come down to the ultimate point of my law school mantra, involving “manifested enforcement.” The final answer to all problems that the Founders envisioned was us. The American People. The Supreme Court was designed to be untouchable by the American voting population, in theory to insulate it from politics. But the other two branches of the United States Government are not immune to angry voters, and the Supreme Court is not immune to the other two branches of the Federal Government. At the end of the day, it must be we the people who will FORCE change upon the government, by electing liberal politicians who give a damn about society and give a damn about the law. We must bend this Federal Government to our will and force our elected officials to impose reform upon the Supreme Court to reflect the changing times in the name of preserving our democracy (i.e. term limits, clearly defined rules for impeachment, prohibition of briberies, mandated cognitive exams, impeaching at least six of the current justices, and e.t.c.).
Our solution to the Supreme Court starts with re-electing Joe Biden, and it continues until we have elected enough congressmen with the cajones to vote to impeach every last corrupt judge and impose real judicial reform. No more passiveness, like the nonsense we get from Dick Durbin.
At the end of the day, the final arbiter of the law (We the People) must bring the gavel down so hard upon this Supreme Court that never again shall six pestilential individuals get the wise idea that they alone can run a nation in a de facto oligarchical tribunal. THAT must be our answer to this rogue Court’s challenge, “or what?”