Think about it, every year we celebrate the 4th of July and the “passing of the Declaration of Independence.” Ok, so the vote itself was taken on July 2 and the 4th was the day it was “published” as in read from the steps of Constitution Hall (as it came to be known) and distributed to newspapers and the public. But the Declaration was one hell of an indictment of the rule of what were until then thirteen English colonies by King George and England in general. I like to read it from time to time, and over the weekend as I thought about what I’d post tomorrow to mark July 4 I gave it another read.
With my mind so occupied with our now 6-3 Federalist Society groomed SCOTUS growing increasingly activist and out of control. Taking away rights instead of clarifying them and ensuring all are entitled to the protections set forth in our founding documents including the Constitution – because an awful lot of people have spent an awful lot of our history not receiving what is carved in stone over the entrance to SCOTUS – “Equal Justice Under Law.”
That got me to thinking as I read that a lot of the things said about King George seemed to apply to our Federalist Society created SCOTUS. And that maybe our Declaration could use a rewrite. Kind of point out why we need freedom from a Court that is dismissive of both the natural rights of people and even the laws under which they live if those laws. Well, laws that don’t let a handful of very rich, very powerful people take whatever the hell they want, do whatever the hell they want. Laws that IMPOSE their beliefs (especially a brand of Christianity that ignores Jesus’ teachings) and values on everyone else.
I mentally scribbled SCOTUS in my head enough times that I decided to offer a draft, a Declaration of Independence from the Roberts Court and replace them with a court that is of, by and for the people (all of us), deriving its just powers from the Constitution and not from a handful of rich & powerful zealot that want to turn the United States into the old feudal system of Lords & serfs. To that end the Roberts Court has decided its MORE than a Supreme Court, but also a Supreme legislative body! And, as with the law as a “super” legislative body there is no institution higher those who disagree can appeal to.
Think I’m nuts? Read on and if you still think so at the end feel free to rip me a new one.
Let’s start with the basics:
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. (U.S. Constitution – Article III Section 1)
That seems fairly straightforward. Article III provides for the creation of the Judicial Branch and establishes a Supreme Court & its powers. Basically the Constitution divides power: The Legislative Branch makes laws, the Executive Branch sees they are carried out and the Judicial Branch makes sure neither steps outside the boundaries of the Constitution. Of course in practice it’s not that simple, and has gotten more complicated as time has passed. Still, it all boils down to those three things. The Constitution was never intended to be a “carved in stone” document. Those who wrote and ratified it new full well changes and or additions would be needed, and made some compromises in language and on important issues (looking at YOU slavery!) to ensure enough states would ratify it. On some matters they flat out punted, and on others they left a little “wiggle room” trusting that records of the debates and their own writings during that time would fill in the blanks as to their intent.
Tragically, too often a great deal of wrongs have been inflicted due to those factors. Especially by those of a conservative mindset who, when it suits them insist on “plain text” as in if it doesn’t spell something out exactly in black and white it ( a right) doesn’t exist in law or the Constitution, yet at other times are when it suits their interests/goals perfectly willing to read in all manner of “intent” using those writing and minutes of debates during the Convention to bolster their case!
In the end, my view is that we have two camps – one who believes that the rights set forth should, as has taken place entirely too slowly be expanded to all people and that it’s simple enough to discern what the majority of the delegates who voted for the final document intended. The other camp is made up of those who never wanted the Constitution in the first place. People often called “Originalists” which in a way is true. However their “Originalism” isn’t to what was ratified in the Constitution but to take us all the way back to the era of the Articles of Confederation! Where a handful of very wealthy and powerful people got to make the rules in their states and change them at will when it suited their personal interests. The LAST thing they wanted was a federal government with enough power to establish nationwide policy and rules.
But if these people can’t have that, the next best thing is to take us back to a time when you had a handful of very rich and powerful (white) men who could pretty much do what they wanted to do. And almost everyone else was in not slavery but close to indentured servitude. The Robber Baron Age, in which what in Constitutional Law would be enshrined in what’s called the Lochner Era. And also that the Reconstruction Amendments don’t have full Constitutional Status. (Unless of course some a-hole Justice want to cynically trot it out when striking down rights as in the Affirmative Action decision last week)
Robert Bork wasn’t the last SCOTUS nominee to lie during a confirmation hearing and speak of Lochner and the era as “wrong”, “Judicial Activism” and the Court acting as a legislative branch instead of a judicial one. Roberts did. As have I believe some of the others in the six person majority that’s establishing itself as the Supreme Government of the United States instead of merely the Supreme Court. You know as well as I do that they are far from done with the judicial activism they and their GOP colleagues once railed against. I could keep going but you get the point.
With all that long windup, I say we have a Supreme Court that has grown out of control and needs to be replaced. Or at the very least be radically reformed. So with apologies to the original Declaration of Independence I’ve rewritten some parts: (I’ll include Jefferson’s version in regular type, and my proposed Declaration of Independence From the Federalist Society GROOMED Supreme Court in italics)
Original version: “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”
(New version) When in the course of American Jurisprudence a nation’s highest Court ignores it’s role set forth by it’s creators as a separate and co-equal branch of government intended to interpret laws to ensure their conformity with the Constitution a decent respect to address the need to replace it with a Court faithful to its proper role in the Constitutional order demands an explanation for taking appropriate measures.
Original Version: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
(New Version) We hold these truths to be self-evident, that all people are created equal, that they are endowed with certain unalienable Rights, that among these are Life, Liberty, the pursuit of Happiness, the full range of rights set forth in our Constitution and Equal Justice under the law. That to secure these rights, a Constitution was debated, approved by delegates to a Constitutional Convention and ratified by the states and amended via provisions set forth in the original Constitution which established three specific branches of government with three distinct sets of duties as co-equal branches of government meant to serve as a check on each other to ensure other branches remained constrained to the roles and purposes for which they were established. That the Supreme Court was to interpret laws passed by the legislative branch and actions taken by the Executive Branch to include the combined actions of the Executive and Legislative Branches in entering into treaties in to ensure conformance with Constitutional principles. Prudence dictates that abolishing, replacing or reforming the Supreme Court should not be done for light or transient reasons. But when a long train of abuses and usurpations of the powers delegated to the Legislative and Executive Branches, via distorting or ignoring Constitutional principles both written and unwritten, ignoring well-established precedent that has been affirmed multiple times and even acting as legislators instead of independent jurists, pursuing invariably the same Object evinces a design to carry out the wishes of an unelected group of private citizens that executed a decades long plan to rule the country by the few, the richest and most powerful by bypassing the Legislative and Executive Branches it is the thei right, it is the duty of the people and the other branches of Government, and to provide new means of assuring the rights set forth in the Constitution extend to all. The actions of the Federalist Society groomed Justices of the present Supreme Court is a history of repeated injuries to those who are both not of the most powerful and richest one-percent who do not share a belief dating back to the Articles of Confederation that only rich, white property and business owners should not only rule but be able to change rules at will to serve their own interests rather than that of the people, but also usurpations of the powers and duties allocated to the Executive and Legislative Branches. To prove this, let Facts be submitted to a candid world.
Original Version: They have refused his Assent to Laws, the most wholesome and necessary for the public good.
(New Version) They have refused his Assent to Laws, the most wholesome and necessary for the public good. For example attempts to regulate the traffic of weapons designed for war despite the steadily increasing violence that has resulted from more firearms in this country than there are people. Attempts to impose limits on political campaigns, while also allowing vast sums of untraceable money to elect officials at all levels of government. Laws to protect the environment and the very natural resources including clean air and water upon which all living things depend. Just to name a few.
Original Version: He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
(New Version) They have blocked the implementation of or by judicial fiat gutted the intent of Laws passed by the Congress and the States of immediate and pressing importance, including ignoring the Court’s longstanding guiding principle of considering and favoring the intent expressed in legislative debate of those in the majority, as well as testimony and evidence produced by widely recognized experts during the passage of such laws, and substituted their own personal beliefs and preferences.
Original Version: He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
(New Version) They have purposely diluted the concept of Representative Government by abandoning the principle of one-person, one-vote though the aforementioned flooding the the elections process with unlimited money including from anonymous donors, as well as allowing gerrymandering to an extreme that results in state and Congressional delegations from states being wildly disproportional by political Party to the actual beliefs and Party affiliations of the voters, replacing the concept of voters choosing their Representatives to Representatives choosing their voters.
Original Version: He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers. (combined with) He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
(New Version) They have obstructed the Administration of Justice by both agreeing to and taking part in the establishment of a Judicial Code of Conduct for all federal judges, while refusing to abide by the same rules for ethics and financial disclosure (among other rules) the demand of “lesser” federal judges, thereby establishing themselves as above the rule of law.
Original Version: He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
(New Version) They have excited and deepened domestic divisions amongst us inviting a new insurrection, and endeavored to provide the tools both in abuse of the first amendment and in arming those who would carry out violence against the Government and its officials both elected and appointed.
Original Version: For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments: (combined with) For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
(New Version) For taking away a series of rights established and reinforced via precedents and signaling intent to take away more rights rather than expand Constitutional rights to those who have yet to fully enjoy the benefit of them, for acting as a legislative body itself with no other authority to override or curtail their overreach.
Original Version: In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
(New Version) In every stage of these abuses of power and usurpations of the functions of other branches of the Government the other branches and the people have Petitioned for redress, only to be met not only by repeated injury but both contempt and an implication that by questioning their authority, insistence they are above reproach and above the law as well as past norms of the Court and implying the infliction of additional injury to both individuals and the people at large for questioning their omnipotence. A Court whose character is marked by every act which may define a cabal of Tyrants that in thought, word and action proclaim they alone stand above all others and the law is unfit to be the final arbiter of the Constitutionality of the actions of the Executive and Legislative Branches and the people.
Original Version: We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.
(New Version) We therefore, the people of these United States individually, collectively and in conjunction with our ELECTED Officials do, in the cause of “Promoting a more Perfect Union, re-establish Justice, ensure the domestic Tranquility, promote the general Welfare and secure the blessings of Liberty to ourselves and our Posterity” do solemnly publish and declare that are, and of Right ought to be able to dissolve the current Supreme Court and replace the Justices who have so abused their power, or in the alternative enact such reforms as to ensure it cannot again attain its current ability to act above the law and even though unelected impose the personal beliefs of its members and their backers who placed them in their current postings from being unaccountable to the Constitution or the people.
Maybe you think I’m nuts, that I’ve gone round the bend. I don’t think so. I also know there are people out there that can likely do a better job that what I’ve proposed here. Much as if this somehow takes off and gets widely read I got some credit from whomever comes up with a better version I can live without it. The important thing is that some version of what I’ve done gets out there and everyone knows about it. Talks about it. Gets talking heads to talk about it and write about it. And if Roberts and his cronies get all butt-hurt over it I have no F**ks to give. They are welcome to come down to NC and kiss my old white a$$.
I know I can be long-winded but with each passing day I’m getting more worked up about this. As bad as things are they are going to get worse. I’m reminded of the battlefield first aid rules I was taught while becoming a Marine. Start the breathing, stop the bleeding, protect the wound and treat for shock. Practically speaking we’ll never be able to remove any of these so-called Justices via impeachment because we’ll never get enough votes in the Senate to convict. But somehow we have to breathe new life, actual fresh and clean air into SCOTUS and though it is a next to impossible task we need to fight like hell to expand the court. The current number is nine, and was set as such in an act of Congress after the Civil War that reduced the number of Justices to nine. The reasoning was with nine federal Circuits we should have nine Justices. We now have thirteen Circuits (there is at least one and possibly two that should be split up) so that’s our talking/selling point. Start the breathing.
Stop the bleeding would take place because the six out of control Justices would be outnumbered. And a couple of them are getting up there in years. I don’ see either Thomas or Alito retiring under any circumstances but they can’t live forever and if we do our jobs a Democratic President can nominate replacements for either or both, and hopefully we’ll have a Democratic Senate that will give the GOP a dose of “McConnell Medicine” and ram them through to confirmation.
Protect the wound and treat for shock can in this matter be combined. The Court, no doubt to Roberts’ dismay has its lowest level of favorability/trust in history. Stopping these outrageous rulings and taking cases that would if not overturn some of what this SCOTUS has done at least mitigate the impact would begin the long, long process of restoring trust and credibility to a crucial institution.
I get that President Biden has to get support from Independents next year and has to be cautious, even disappointing in his rhetoric when it comes to expanding the Court. But he’d by god be ready to hit the ground pushing it the day after the 2024 election is called in his favor!
Our country cannot endure with anything less.