Yesterday I commented that "our constitutional regime has an Achilles Heel in the vast power of the Supreme Court - i.e., if we ever get five justices (enough for a majority) who consistently vote in ways that systematically undermine the text and spirit of the Constitution, there's little We the People can do to reverse the decisions of these appointed-for-life Justices."
Jean Edward Smith, John Marshall professor of political science at Marshall University, makes an excellent point in an OpEd in yesterday's New York Times, reminding us of the several times throughout the nation's history when the Court has been "set straight" with the political solution of increasing (or decreasing) its membership.
The size of the Supreme Court is not fixed by the Constitution. It is determined by Congress. As Smith notes, "there is nothing sacrosanct about having nine justices on the Supreme Court. Franklin D. Roosevelt's 1937 chicanery has given court-packing a bad name, but it is a hallowed American political tradition participated in by Republicans and Democrats alike." Specifically, Congress has adjusted the size of the Supreme Court on the following occasions:
-1800: "When the Federalists [and John Adams] were defeated in 1800, the lame-duck Congress reduced the size of the court to five - hoping to deprive President Jefferson of an appointment. The incoming Democratic Congress repealed the Federalist measure (leaving the number at six), and then in 1807 increased the size of the court to seven, giving Jefferson an additional appointment."
-1837: Congress "increased the number to nine, affording the Democrat Andrew Jackson two additional appointments."
-~1862: "During the Civil War, to insure and anti-slavery, pro-Union majority on the bench, the court was increased to 10."
-~1866: "When a Democrat, Andrew Johnson, became president upon Lincoln's death, a Republican Congress voted to reduce the size to seven (achieved by attrition) to guarantee Johnson would have no appointments."
-1868: "After Ulysses S. Grant was elected, Congress restored the court to nine. That gave Grant two new appointments.
-1937 (failed attempt): "The most recent attempt to alter the size of the court was by Franklin Roosevelt in 1937. But instead of simply requesting that Congress add an additional justice or two, Roosevelt's convoluted scheme fooled no one and ultimately sank under its own weight."
Smith's point is an important one, in that it explains another mechanism by which We the People, through our elected representatives, may temper a persistently out-of-touch Supreme Court.
Smith concludes, "If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant."
Friday, July 27, 2007
Wednesday, July 25, 2007
Separation of Powers Showdown
The President's position that his aides are absolutely immune from testifying before Congress, despite congressional subpoenas for information on the abrupt firings of federal prosecutors, sets up a separation-of-powers showdown that will be resolved ultimately by the Supreme Court - which these days is an increasingly scary proposition.
As reported by MSNBC, "the White House has said that Chief of Staff Josh Bolten and former legal counselor Harriet Miers, among other top advisers to President Bush, are absolutely immune from subpoenas because their documents and testimony are protected by executive privilege." In response, House Democrats today are preparing contempt of Congress citations against Bolten and Miers.
This is just the latest in George W. Bush's assault on the Constitution. The Supreme Court, IF it adheres to precedent on this issue, will hold that executive privilege does not extend to allow aides to avoid responding to congressional subpoena. This would be the correct decision, in that it recognizes the proper separation of powers among the executive and legislative branches envisioned by the framers of the Constitution.
That's a big "if," though, since the Roberts Court has demonstrated in its recently-completed 2006-07 term that it is perfectly willing to discard precedent when it might have more cautiously decided the cases on other grounds. And we're perilously close - if we're not there already - to having a majority of the Court ratify the President's extreme views of Executive power. Even a case that seemed as open-and-shut as the 2006 Hamdan case, holding that the executive lacked the power to unilaterally limit the due process rights of enemy combatants imprisoned at Guantanamo Bay, was only 5-3 (actually, 5-4, since Chief Justice Roberts recused himself, having decided the case below in favor of the President while on the DC Federal Court of Appeals).
I've said it before, but this is yet another illustration of the notion that our constitutional regime has an Achilles Heel in the vast power of the Supreme Court - i.e., if we ever get five justices (enough for a majority) who consistently vote in ways that systematically undermine the text and spirit of the Constitution, there's little We the People can do to reverse the decisions of these appointed-for-life Justices. Oh, technically we can amend the Constitution or argue that Congress will impeach the Justices, but both of these alternatives are so remote as to be virtually non-existent.
Stay tuned for the future of our constitutional democracy.
As reported by MSNBC, "the White House has said that Chief of Staff Josh Bolten and former legal counselor Harriet Miers, among other top advisers to President Bush, are absolutely immune from subpoenas because their documents and testimony are protected by executive privilege." In response, House Democrats today are preparing contempt of Congress citations against Bolten and Miers.
This is just the latest in George W. Bush's assault on the Constitution. The Supreme Court, IF it adheres to precedent on this issue, will hold that executive privilege does not extend to allow aides to avoid responding to congressional subpoena. This would be the correct decision, in that it recognizes the proper separation of powers among the executive and legislative branches envisioned by the framers of the Constitution.
That's a big "if," though, since the Roberts Court has demonstrated in its recently-completed 2006-07 term that it is perfectly willing to discard precedent when it might have more cautiously decided the cases on other grounds. And we're perilously close - if we're not there already - to having a majority of the Court ratify the President's extreme views of Executive power. Even a case that seemed as open-and-shut as the 2006 Hamdan case, holding that the executive lacked the power to unilaterally limit the due process rights of enemy combatants imprisoned at Guantanamo Bay, was only 5-3 (actually, 5-4, since Chief Justice Roberts recused himself, having decided the case below in favor of the President while on the DC Federal Court of Appeals).
I've said it before, but this is yet another illustration of the notion that our constitutional regime has an Achilles Heel in the vast power of the Supreme Court - i.e., if we ever get five justices (enough for a majority) who consistently vote in ways that systematically undermine the text and spirit of the Constitution, there's little We the People can do to reverse the decisions of these appointed-for-life Justices. Oh, technically we can amend the Constitution or argue that Congress will impeach the Justices, but both of these alternatives are so remote as to be virtually non-existent.
Stay tuned for the future of our constitutional democracy.
Summer Reading
Back now from several weeks of summer R & R....
I've been reading a number of books this summer I'd highly recommend. Here's a list of several of the best, with some of the dust-jacket blurbs:
-Kevin Phillips, American Theocracy (2006) - dedicated "to the millions of Republicans, present and lapsed, who have opposed the Bush dynasty and the disenlightenment in the 2000 and 2004 elections," American Theocracy describes how "every world-dominating power from ancient Rome to the British Empire has been brought down by an overlapping set of problems: a foolish combination of global overreach, militant religion, diminishing resources, and ballooning debt. In American Theocracy, former Republican strategist and noted political and economic commentator Kevin Phillips argues that it is exactly this nexus of ills that has come to define America's identity at the start of the new century. Matching his command of history with a penetrating analysis of contemporary politics, Phillips presents a searing vision of the future, confirming what too many Americans are still unwilling to admit about the depth of our misgovernment."
-Howard Zinn, A People's History of the United States: 1492-Present (1980) - with its telling of America's story from the point of view of America's women, factory workers, African Americans, Native Americans, working poor, and immigrant laborers, A People's History of the United States has become a modern classic, translated now into a dozen languages. Historian Eric Foner states, in the New York Times Book Review, "Professor Zinn writes with an enthusiasm rarely encountered in the leaden prose of academic history, and his text is studded with telling quotations from labor leaders, war resisters, and fugitive slaves. There are vivid descriptions of events that are usually ignored, such as the great railroad strike of 1877 and the brutal suppression of the Philippine independence movement at the turn of the last century. Professor Zinn's chapter on Vietnam - bringing to life once again the free-fire zones, secret bombings, massacres, and cover-ups - should be required reading for a new generation of students." Howard Fast adds, "One of the most important books I have ever read in a long life of reading.... It's a wonderful, splendid book - a book that should be read by every American, student or otherwise, who wants to understand his country, its true history, and its hope for the future."
-Cullen Murphy, Are We Rome? (2007) - longtime Atlantic Monthly managing editor Cullen Murphy "ventures past the pundits' rhetoric about the rise and fall of ancient Rome to draw draw nuanced lessons about how America might avoid Rome's demise. Working on a canvas that extends far beyond the issue of an overstretched military, Murphy reveals a wide array of similarities between the two empires: the blinkered, insular culture of our capitals; the debilitating effect of venality in public life; the paradoxical issue of borders; and the weakening of the body politic through various forms of privatization. Murphy argues that we most resemble Rome in the burgeoning corruption of our government and in our arrogant ignorance of the world outside - two things that are in our power to change."
-Chalmers Johnson, Nemesis (2007) - following from his earlier books, Blowback, linking the CIA's clandestine activities abroad to disaster at home, and The Sorrows of Empire, exploring how the growth of American militarism and the garrisoning of the planet have jeopardized our safety, Nemesis shows how imperial overstritch is undermining the republic itself, both economically and politically: "Delving into new areas - from plans to militarize outer space to Constitution-breaking presidential activities at home - Nemesis offers a striking description of the trap into which the grandiose dreams of America's leaders have taken us. Drawing comparisons to the Roman and British empires, Johnson explores in vivid detail just what the unintended consequences of our dependence on a permanent war economy are likely to be."
I've been reading a number of books this summer I'd highly recommend. Here's a list of several of the best, with some of the dust-jacket blurbs:
-Kevin Phillips, American Theocracy (2006) - dedicated "to the millions of Republicans, present and lapsed, who have opposed the Bush dynasty and the disenlightenment in the 2000 and 2004 elections," American Theocracy describes how "every world-dominating power from ancient Rome to the British Empire has been brought down by an overlapping set of problems: a foolish combination of global overreach, militant religion, diminishing resources, and ballooning debt. In American Theocracy, former Republican strategist and noted political and economic commentator Kevin Phillips argues that it is exactly this nexus of ills that has come to define America's identity at the start of the new century. Matching his command of history with a penetrating analysis of contemporary politics, Phillips presents a searing vision of the future, confirming what too many Americans are still unwilling to admit about the depth of our misgovernment."
-Howard Zinn, A People's History of the United States: 1492-Present (1980) - with its telling of America's story from the point of view of America's women, factory workers, African Americans, Native Americans, working poor, and immigrant laborers, A People's History of the United States has become a modern classic, translated now into a dozen languages. Historian Eric Foner states, in the New York Times Book Review, "Professor Zinn writes with an enthusiasm rarely encountered in the leaden prose of academic history, and his text is studded with telling quotations from labor leaders, war resisters, and fugitive slaves. There are vivid descriptions of events that are usually ignored, such as the great railroad strike of 1877 and the brutal suppression of the Philippine independence movement at the turn of the last century. Professor Zinn's chapter on Vietnam - bringing to life once again the free-fire zones, secret bombings, massacres, and cover-ups - should be required reading for a new generation of students." Howard Fast adds, "One of the most important books I have ever read in a long life of reading.... It's a wonderful, splendid book - a book that should be read by every American, student or otherwise, who wants to understand his country, its true history, and its hope for the future."
-Cullen Murphy, Are We Rome? (2007) - longtime Atlantic Monthly managing editor Cullen Murphy "ventures past the pundits' rhetoric about the rise and fall of ancient Rome to draw draw nuanced lessons about how America might avoid Rome's demise. Working on a canvas that extends far beyond the issue of an overstretched military, Murphy reveals a wide array of similarities between the two empires: the blinkered, insular culture of our capitals; the debilitating effect of venality in public life; the paradoxical issue of borders; and the weakening of the body politic through various forms of privatization. Murphy argues that we most resemble Rome in the burgeoning corruption of our government and in our arrogant ignorance of the world outside - two things that are in our power to change."
-Chalmers Johnson, Nemesis (2007) - following from his earlier books, Blowback, linking the CIA's clandestine activities abroad to disaster at home, and The Sorrows of Empire, exploring how the growth of American militarism and the garrisoning of the planet have jeopardized our safety, Nemesis shows how imperial overstritch is undermining the republic itself, both economically and politically: "Delving into new areas - from plans to militarize outer space to Constitution-breaking presidential activities at home - Nemesis offers a striking description of the trap into which the grandiose dreams of America's leaders have taken us. Drawing comparisons to the Roman and British empires, Johnson explores in vivid detail just what the unintended consequences of our dependence on a permanent war economy are likely to be."
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