This started off as a comment to one of the many articles about the “Immunity” decision by SCOTUS, that being in a long discussion about the abuse of power at the hands of the shadowy figures funding and controlling the “Federalist Society” and other oligarch funded advocacy organizations whose goals are to revert society and its legal structures back to at least 1954 or 1928 or 1860… But that is a separate but important issue.
Our society and nation have changed considerably since even 1945 let alone since 1789. We have in that time had enough non-European, specifically non-English, immigration such that my Euro-American ethnicity is now rapidly becoming a minority among minorities. World War II forced the end of segregation in the Military and pulled women out of the kitchen and onto the factory floor, e.g. “Rosy the Riveter”. These and other previously sanctioned and excluded groups were not going back to the powerless place they were in prior.
“Diversity” is not a social/political tagline or “policy something”. It is a demographic fact. In a country such as what now exists within the recognized international borders of the U.S.A., this shift requires changes in the power structures of society. Unfortunately, some groups within the Euro-Americans, most visibly among Evangelical Protestats, refuse to accept these facts. The stated goal of the “Federalist Society” and its co-conspirators is to work the structure of government to maintain their power, once majority secured, now no longer. The goal is power. But power requires institutions, something the “White”, actually Wealthy Anglo-Saxon Protestant (WASP) population only had simply because it was the majority population and voting block. That is true no longer in the larger states such as California. Southern Dixiecrats ran the Congress, both Houses, when I was in elementary school. Catholics also had no chance to be President. And then JFK broke through the “anti-Papist” wall. Things went downhill from there. Biden is only our second Catholic POTUS. But then until Obama, all the others were Euro-American men, almost all of English heritage and Protestant. The fact is, the subset of Euro-Americans who were happy with a democracy that they could run among themselves are no longer so. They are outnumbered and the chances of that fact changing are fading by the hour. Even their religious influence is fading. The only institution left is SCOTUS. We now have a majority on the Court bought and paid for by the Federalist Society and friends.
We have a legitimate question to ask in this present time: “Why is the Federalist Society and its friends like the Heritage Foundation, all private institutions funded by what one could easily describe as the Old Guard, so dedicated to dominating the Federal Judicary?” What does, in particular, SCOTUS have that they need to remain in social and political power?
We have seen it in Dobbs, and now Trump’s Immunity Defense.
In the end, the real issue is Marbury v. Madison an issue dating back to 1789. The Constitution gives the Judiciary no such power. John Marshall took advantage of an egregious bit of “patronage” to assume that power at a time when the federal government was still trying to find where the bathrooms were let alone how to run our new and untested independent government. At the time, no one objected because the case had such a skunk smell to it. It then became assumed “precedent”. What followed, however, was Dred Scott. Again, due to the political climate, nothing was done. We all know how that came out when the oligarchs of that day, the plantation owners of the South, rather than give up chattel slavery — something even the British Empire outlawed, decided to dissolve the government and the union in a power grab for themselves.
The conditions really have not changed from back then. We still have an oligarch class accustomed to unquestioned power finding their leverage slipping away under the pressure of minorities and half of the population (uppity women) who are demanding a say in government. And now we come to this, the second equally bad “Dred Scott” decision — not to mention a new grab of power by SCOTUS in the fine print of the decision.
But.
Congress and only Congress has the power to (re)organize the court(s). It does that via federal statute law. That is the legislative check and balance of SCOTUS power. That does not need or require an Amendment. Congress can pass federal statute law, which must be signed or vetoed by the President to make the change, the precedent of Amendment 16 noted. Note that the foundation of the court system that Mr Maybury pled his case before was founded by the Federal Judiciary Act of 1789. See Judicial Review. As noted in this article, this power has been a point of contention for a long time. Our current predicament comes about because the precedent of Maybury provides a loophole, only recently understood, for the oligarchs to re-assert their power. Look at the series of recent decisions. That loophole is:
Whoever controls the patronage of SCOTUS Justices controls the country. That power comes from lifetime appointments, often significantly longer than any legislative or executive term of office. That and the lack of checks and oversight. The power is the power to repeal any and all laws contrary to the goals of the court’s patrons.
This is not sustainable. Just the Dobbs decision alone has disenfranchised the rights and safety of 50% of the population, other decisions place the majority of the population of the country and, in some cases like the EPA gutting, the planet in peril for the benefit of a miniscule population, the oligarchs. Just as with the Civil War, there will be change. We suffered enough to settle that power grab. It is time to remove the loophole to power.
It is time to clarify and codify the actual powers granted to the Judiciary. In essence, an update to the Judiciary Act of 1789 to fill in the blanks not noticed at the time.
SCOTUS, actually, the whole of the federal Judiciary has authority over State and local law. That is how Brown v Board of Education and all that followed were decided. Federal statute and judicial decisions take precedence (by the Constitution) regardless the opinions of past and present Confederates/”States Rights” advocates.
Federal statute law is a different case. Federal law is created and passed by both Houses of the Congress and signed/vetoed by the President. That means that for the Judiciary to “overturn” federal statute law it is a big deal. To declare such statutes “unconstitutional” is effectively a repeal of the law. But a repeal is itself a statute law passed by Congress and signed by the President. The repeal matches in power and effect the original enactment. For SCOTUS to abrogate that power, the combined Legislative and Executive power, is a power grab that makes for one and only one branch of government, specifically a mere majority of SCOTUS Justices. Accepting the current Court’s interpretation of its own power granted by its own decision in Maybury is the acceptance of the Judiciary’s usurped power to legislate. In irony of ironies, the current Chief Justice Roberts started his career in government as a DOJ attorney trying to get Congress to write statute law that would restrict the Court’s jurisdiction in civil rights cases, i.e. to revoke Brown. His reasoning stated that the courts do not and should not legislate. Of course, he would prefer we ignore the fact that the then-Liberal court was invalidating state not federal law. something that is, in fact, specified in the Constitution.
How would this reform work?
There needs to be a check, long overdue, to the review power. The word used in Article III is review, not repeal. Repeal requires two branches (majority of the three) to agree. An effective repeal by a minimum of five, appointed for life, (in a current nine member court) is monarchy by any other name. Note that monarchs, be they Pope, King, or Emperor are also appointed (sometimes by God) for life and immune to constraint. The process of review needs to be defined in such a way that all three branches are required. We have come to the sad state of affairs where the assumed meaning of the word is no longer good enough.
- First, SCOTUS still reviews federal law. The difference is the result of their review is expressed in and as their opinion. Note that their judgments today are referred to as opinions. Laws passed by the Congress and signed by the President are not.
- Their opinion does have weight but it does not become law because they do not have the power to legislate. Instead, their objections and/or questions to the statute, the essence of their review, are referred to Congress to solve. They did that in their opinion gutting the Voting Rights Act. In that case they referred it back to Congress because the law only applied to the former Confederate states whose “Jim Crow” laws were negated by the Voting Rights Act. At this point, nothing takes effect.
- The Congress then takes up the question. If it agrees, it passes legislation repealing the law in question. The President then signs it into statute law. At this point, the change called for by the Judiciary takes effect. This adds the weight of all three branches agreeing with the opinion of the Justice who wrote the majority opinion. Of course, Congress can take other circumstances and evidence into account and modify rather than word-for-word ratify the court opinion.
- If the Congress or the President disagrees with the opinion of the Court, the Court’s decision with regard to constitutionality, that part of the Court’s decision/opinion is null and void. This is done also by statute law having the force of two branches checking the third. The court is then required to conform its opinions to the law as clarified. It can still review under the new, clarified, statute but such review enters back into the process.
- The constitutional content of the opinion does not take effect until after statute law takes effect.
My guess is that things will only get worse until we finally settle via legislation the ambiguities of Maybury. I would also not be surprised if the oligarchs lose interest in the courts and go off and find some other wedge to block the door to democracy. But at least, we can plug this hole.