Monday, February 23, 2009

Ruling Against the Supremes

First, thank you all for the good conversation, and 250,000 hits as of this morning. This was a happy blogiversary, but I am not the 'better half'.
The disturbing tendencies shown by the Supreme Court as presently constituted has given new force to growing need to bring the court into a better form for its functions. As the third branch of government, the Supreme Court has the charge of wielding the laws and giving them form. As it presently functions, this Supreme Court has ruled to a great degree to impose free market and anti-woman's rights views on the country.

In Ledbetter, the Supremes showed that a woman's rights were subordinate to business interests and used a completely irrational basis for their ruling. Specifically, a woman was subject to wage discrimination if she could not do the impossible; find out what her peers were being paid within 90 days of being hired.

In ruling against a hypothetical 'partial birth abortion' procedure, the Supremes declared themselves uber-doctors. They declared that a woman's health had to be subjected to the need to preserve the fetus's life if the medical procedure dictated by particular circumstances necessitated extracting a fetus with as little strain as possible to the woman concerned. Needless to say, no one would choose abortion as birth control, least of all the procedure that the Supremes decided they had medical knowledge of - above that of medical practitioners. Yet the Supremes felt that to carry out the country's laws dictated that they should become practitioners of obstetrics. Doctors have a new force to fear, as the Supremes enter into making decisions that should be based on individual medical necessity.

The majority on the Supreme Court is at present composed of religious doctrine advocates who have warped the law of the land toward a view of legality that is antithetical to the interests of the U.S. They are dominated by a group of relatively youthful ideologues, and that forms a real threat to the country's national health.

A review of the Court's mandate by a group of prominent law professors and jurists organized by Duke University law professor Paul D. Carrington has concluded that changes need to be made in the interests of continuing rational government.

...the group proposes a form of term limits, moving justices to senior status after 18 years on the court. The proposal says that justices now linger so long that it diminishes the likelihood that the court's decisions "will reflect the moral and political values of the contemporary citizens they govern."

To get around the Constitution's prescription that justices serve for life, the group would let justices stay on the court in a senior role -- filling in on a case, perhaps, or dispatched to lower courts -- or lure them into retirement with promises of hefty bonuses.

It would set up a regular rotation on the court by providing for the nomination of a new justice by the president with each new two-year term of Congress. If that results in more than the current nine justices, only the nine most junior would hear cases.

The new policy would not take effect until those already on the court are off, but the current tenure of the court suggests what a radical change that would be. Four of the court's justices -- John Paul Stevens, Antonin Scalia, Anthony M. Kennedy and David H. Souter -- have already surpassed the 18-year mark, and Clarence Thomas gets there later this year. Ruth Bader Ginsburg and Stephen G. Breyer are not far behind.

University of Chicago professor Eric Posner said the Constitution's call for lifetime appointments is one element of American democracy that is never copied by other countries, perhaps because "it is very undemocratic."

"People who wield an enormous amount of power should not have lifetime appointments," Posner said.

Relatedly, the group calls for the justice who serves as chief to be limited to seven years in the job, because it has "extended into numerous other political, administrative and non-judicial roles calling for a measure of special accountability."

The third proposal deals with the removal of justices in failing health "who are increasingly prone to remain in office and retain their political power even if no longer able to perform their office."

It did not name names. But it said the chief justice should have the duty of advising such a justice to resign and promptly report that fact to the Judicial Conference of the United States (if the chief is the one in question, it falls to other justices to report him).

And the proposal would deprive the justices of one of their greatest powers: deciding which cases they hear. Justices now comb through the thousands of petitions for certiorari they receive each year, and in recent years have declared a declining portion of them worthy of their time.

The court issued 67 merit opinions last term, the lowest number since the 1950s. The number of cases the court will decide this term is a bit higher.

"It is increasingly difficult to justify absolute independence for justices whose chief work is expressing and imposing on the public laws on topics of their choice," the proposal said.

It envisions a "Certiorari Division" made up of senior justices and appellate judges who would review the petitions and send 80 to 100 each year for the Supreme Court to decide, whether it wanted to or not.

The illness that Justice Ginsburg has been suffering indicates that a new appointment may be coming up. The proposed new justice would replace one of the greatest progressives on the court, and not improve prospects for a new rational face on the court as a whole. That decisions have shown decidedly right wing prejudices bodes ill for the present, taking the Supremes back into a mindset that its American constituency has rejected.

We are poorly served by the minority, regressive, views now shown by the Supreme Court in its rulings. The proposed future changes might head off such an emergency recurring. Unfortunately, that will not improve the prospects of continued injustice in the coming decade, at least. The effects of a really horrible presidency threaten to remain with us for some time to come.

A recall petition may become a consideration if present injustices continue.

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