Is there no limit to the power of the Supreme Court to enact laws from the bench? Does the Constitution simply mean what the Supreme Court says it means?

Consider an extreme and unlikely example, but nonetheless illustrative: Suppose the Supremes were to rule (five to four, of course), that “The United States is a Christian nation,” and that henceforth, only confessing Christians could hold public office. Such a ruling would, of course, directly contradict Article Six and the First Amendment to the Constitution. But such considerations have not constrained this Supreme Court or its predecessor. The Constitution also stipulates that the states are to determine the electors in a presidential election. (Article 2, Section 1) In Bush v. Gore, the Supremes ignored that when they brushed aside the Florida Supreme Court’s ruling that a statewide recount of the vote must continue. The same court in the same decision, set aside the rule of stare decisis (precedent) when it wrote, “Our consideration is limited to the present circumstances.”

The Roberts Court has found no occasion to restore habeas corpus or to reaffirm the Fourth Amendment prohibition of search and seizure, both of which are required by the Constitution, and both of which are openly violated by the Military Commission Act and by Bush’s admitted defiance of FISA. And just last month, in Hein v. Freedom from Religion Foundation, the Roberts Court moved half the distance toward an establishment of religion, when it allowed federal tax revenues to be distributed to religious agencies selected by the Bush’s White House.

Suppose further that in 2008 a Democratic president and an overwhelmingly Democratic Congress is elected. The Congress then proceeds to enact, and the president to sign, legislation depriving corporations of “personhood” status, instituting single-payer medical coverage, reforming campaign finance, etc. -- in short, repealing the abuses of the Bush regime and the GOP Congress and instituting progressive reforms. And then, one by one, all these are voided by the Supreme Court, with rulings that are flimsy at best, and more often plainly absurd, and none of them open to appeal. In short: a nullification by one branch of government of the remaining two branches.

The Constitution of the United States provides checks and balances, to prevent unwarranted exercise of power by branches of the federal government. The Congress is restrained by the president’s veto power, and the president is kept in check by the congressional option of impeachment and removal from office. Both the executive and the legislative branches are constrained by the Supreme Court’s “judicial review” of enacted laws and executive orders. (“Judicial review,” however, is not specified in the Constitution. It was established in 1803 in the landmark case, Marbury v. Madison).

While specifying “checks and balances” against the president and the Congress, the framers of the Constitution failed to likewise constrain the powers of the Supreme Court, other than to allow impeachment if the judges failed to “hold their offices during good behavior,” a vexing and vague condition, to say the least. (Article 3, Section 1). All federal officers take an oath to “support the Constitution” (Article 6). But that requirement raises a troubling paradox: How is the court, or a justice of the court, or a ruling of the court, to be judged to violate the Constitution, when the court itself is the final interpreter of the Constitution?

Apparently the framers couldn’t imagine a time when the Supreme Court itself might become an outlaw, and thus they provided us with no remedy.

Such a time is upon us now, soon to be followed by a desperate search for a remedy.

Facing judiciary tyranny, what is the next president, the Congress, and the vast majority of the voters that elected them, to do?

Testifying under oath before the Senate Judiciary Committee, Roberts and Alito both promised to decide cases as “umpires,” without “agendas” or “any preferred outcome in any particular case.” And they said they would be guided by precedent -- stare decisis. They lied, of course, as is evident in their recent decisions. Unfortunately, since their rulings are open to endless interpretation, charges of perjury will likely lead nowhere.

In view of their few rulings to date (and I fear, far worse to come), it appears that the five controlling justices (Roberts, Alito, Kennedy, Scalia and Thomas) do not see themselves as the guardians of established law and the Constitution. They are activists, championing the agenda of the mega-corporations and the religious right, at the expense of the rights of minorities, the poor, and ordinary individual citizens. They are, in short, the judicial exemplars of Bush/Cheney Inc.

And nothing, it seems, can stop them. Least of all the Democrats in the Congress as now constituted, who, after all, allowed the confirmation of Roberts and Alito.

Are there no remedies?

To say that there are none, is to surrender before the struggle even begins. As Justice Robert H. Jackson wrote, the Constitution is not a "suicide pact.” So if the framers neglected to provide an easy solution to judicial tyranny, they surely did not intend to allow it by default. It is our task to find a remedy, otherwise we will meekly submit to repression. Here are some suggestions.

Impeachment due to perjury. Clarence Thomas told the Judiciary Committee that he never gave an idle thought to Rowe v. Wade. He also testified that he did not sexually harass Anita Hill. Might there not still be eyewitnesses, written, or other testimony and evidence proving that Thomas committed perjury? This approach is not very promising. The evidence is cold, and perhaps Thomas is protected by the statue of limitations. (Lawyers, please help me with this). The Roberts and Alito lies under oath are, as above noted, “open to interpretation,” and thus cannot overcome the “beyond reasonable doubt” standard.

The “Good Behavior” condition. It is likely that a $50 million Ken Starr type investigation would uncover some dark secrets in the lives of "the regressive five” on the court. But the country can ill afford still more politics of personal destruction. There are two edges to this sword, which can cut away any and all of the comity that is prerequisite to productive political activity. Furthermore, the “good behavior” condition likely applies to conduct while on the bench, and there is no evidence that any of the Five have “behaved badly” in the ordinary sense. They have “behaved badly” in their recent rulings, but this is a judicial rather than a moral judgment, and surely not what the framers had in mind by their “good behavior” condition.

A Constitutional Amendment. One might imagine a constitutional amendment allowing the removal of a Supreme Court justice upon two-thirds vote in both Houses of Congress. Or it might abolish lifetime appointments and require periodic reconfirmation. (The specifics are not important, just the principle that the power of the court might be curtailed by constitutional amendment). This might be an ideal long-term solution, made more feasible by the abuses that we have seen and will see in this court. But it will not suffice for the short- or mid-term, when The Roberts Five may do the most damage.

Nullification of the Bush Administration Appointments. This, admittedly, is a long shot -- bordering on fantasy. But who knows? It just might work.

Suppose that, at long last, we have proof-positive that the 2000 and 2004 elections were stolen. By this I mean indictments, jury trials, guilty verdicts and convictions, resulting from confessions, and “smoking gun” physical and documentary evidence (e.g., internal memos from Diebold and expert examination, at last, of the "proprietary" source codes).

Proving a stolen presidential election is less difficult than one might suppose. Provide such proof in one large state (say Florida in 2000 or Ohio in 2004), and we have proof that the election was obtained through criminal activity. The capper would be proof that this felonious activity extended all the way up to Karl Rove and the RNC, and that both Bush and Cheney were aware of it. Ideal, but perhaps not necessary.

With all this in the public and legal record, might not a post-2008 Congress rule that all appointments during the illegitimate Bush/Cheney administration were null and void? It would follow that judges appointed by Bush and confirmed by Congress would, at the very least, be required to submit to new hearings before the Senate Judiciary Committee and subject to reconfirmation. Roberts and Alito would then be vulnerable. This strategy has the added advantage of clearing out the Bush troglodytes from the lower federal courts, too.

Court Packing. Nowhere in the Constitution is it specified that the Supreme Court must contain nine members. With the ratification of the Constitution, there were five. There is thus no constitutional prohibition to adding two more justices, thus putting The Regressive Five in the minority. Franklin Roosevelt tried to increase the number of justices to 13 and was rebuffed by the Congress, and since then political scientists and legal scholars have, by and large, held FDR’s ploy in low regard. But if the Roberts Court proves to be as contemptuous of the president, the Congress, and legal precedent as it appears it might by its current behavior, then desperate measures are in order. And court packing is entirely permissible under the law.

I am not a legal or constitutional scholar. Perhaps I have overlooked a solution that is more promising than any of the above. I devoutly hope so. If there any such solutions, please let me know, and I will share it with all who regularly read The Crisis Papers and other sites that post my essays.

There must be an escape from the judicial tyranny that Bush, Cheney and the GOP have foisted upon all of us.

It is our task, and that of our representatives, to find it.

Copyright © 2007 Ernest Partridge