Big Brother Smackdown Series: The Supreme Court

The U.S. Supreme Court

(Politicizing the Constitution of the United States of America)

In recent years, and most especially since the recent Supreme Court decision regarding the Affordable Health Care Act, there has been an outcry, both politically and publicly, for change to be brought to the United States Supreme Court. Proponents of Change argue that the members of the Supreme Court have consistently become more political in their decisions, stretching interpretations of the Constitution to back whatever political agenda they serve.

What is the Supreme Court?

The Supreme Court of the United States is the highest court in the nation. It has appellate jurisdiction over all federal courts and over state court cases involving issues of federal law. There is a general mystique that surrounds the Supreme Court because the vast majority of Americans will never find themselves facing that court.

The Court consists of 9 judges (one Chief Justice and 8 Associate Justices) that are appointed by the President of the United States. Once appointed, each Justice serves a life term, unless they resign, retire, or are removed after impeachment. Currently seated, the longest seated member is Justice Antonin Scalia; appointed by Ronald Reagan in 1986.

The role of the Supreme Court is to decide the constitutionality of proposed laws; as well it is the highest step in the appeals process when challenging law. It is important to note, however, that the United States Supreme Court only has jurisdiction over federal courts, congressional lawmaking, and state cases involving federal law. In other words, as long as a State’s law, or a proposed congressional legislation, does not contradict, or violate, the U.S. Constitution, the U.S. Supreme Court has no jurisdiction.

Federal Farmer No. 16:

We must consider this constitution, when adopted, as the supreme act of the people, and in construing it hereafter, we and our posterity must strictly adhere to the letter and spirit of it, and in no instance depart from them.

Federalist No. 78, Alexander Hamilton wrote:

A Constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.

If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute.

As implied in the Federalist Papers and the Federal Farmer’s (an Anti-Federalist journal kept during the proceedings of the Constitutional Convention), the Supreme Courts only role was to determine constitutionality of the cases brought before them; and in the cases of two opposing points that seemed to be valid constitutionally, which more closely resembled the “letter and spirit” of the U.S. Constitution.

So, is Constitutional Interpretation… well, Constitutional?

While this editorial, and other articles and news/media reports continually refer to the words, “recent outcry”, the question of interpretation has been a longstanding debate.

Since the ratification of the Constitution, there have been two schools of thought. The first being what is called “Originalism”. As the word implies, the first group of interpreters rely on the original meaning and intent of the Constitution.

The second school of thought is called “The Living Constitution”. In this theory, interpreters believe that the Constitution, as written, cannot be applied to the constantly evolving nature of our nation. Therefore, the words of the Constitution must be applied in context to each given situation.

In the interest of disclosure, I will say that I believe in Originalism. I believe that the founders of our nation, and our Constitution, were geniuses who understood both the nature of their newborn nation and what legacy they wished to leave for posterity. That is why I use original quotes and documentation from the Constitutional Convention as references in my writing.

The question on whether Constitutional Interpretation is constitutional is difficult, yet simple, to answer. The Supreme Court’s responsibility is to interpret the Constitution in regards to a given case. Does that question/case/law agree with or contradict the Constitution?

In that, interpretation seems like a small task. Read what the constitution says, explain the meaning of it, and apply it towards the point in question.

Why is there an argument for Court Reformation?

There are two problems that have caused repeated questioning of the Judicial Branch of our Federal Government. The first problem is over which interpretive theory should be practiced. The second is political influence.

Federalist No. 78 – Alexander Hamilton on Separation of Powers:

And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments;

The founders of the Constitution had gathered due, largely, to corruption in the State Governments, resulting in the need to strengthen the Federal Government, while ensuring it remained de-centralized. In creating the three branches of our federal government, and realizing that the judicial branch would be called upon to ensure the constitutionality of legislation, our founding fathers sought to maintain a separation of powers. They understood that, should there be a combination of the Judiciary with the Legislative bodies, liberty would be in jeopardy.

Arguably, you can make the case that justices, with political agendas (or appointed for the purpose of political agendas) constitutes a union of branches. In Supreme Court decisions that have had questionable outcomes, the question of political intrusion is often asked.

Most recently, with the Affordable Health Care Act, the upheld ‘Individual Mandate’ was declared constitutional as a tax, despite being declared unconstitutional under the Commerce Clause. It is controversy like this that spurs the calls for reform. The federally enumerated powers to tax were tenuously connected via the fact that the “penalties” would be collected through regular taxation measures by the Internal Revenue Service, despite not once being called, or described as, a tax in the legislation.

(Analysts now report that Justice Scalia’s joint dissent seems to have been written as the Majority Opinion, rather than the Dissenting Opinion. This has led to realization that the Supreme Court was striking down both provisions of the Affordable Health Care Act as unconstitutional until a last minute flip by Justice Roberts.)

Many felt that this questionable connection was made through political agenda; and as such, would be contradictory to the Constitution’s separation of powers.

Those who seem to encourage political agendas often seem to follow the “Living Constitution” theory of interpretation, while “Originalist” Justices tend to vote regardless of their personal or political views.

That’s all well and good, but how do you remove political influence from the Court?

Even in the Constitutional Convention of 1778, political influence in the Supreme Court was in question. The founders felt that Presidential Appointment with Senatorial Affirmation would be the primary defense against such misconduct. From the Federalist Papers and other documents, it is shown that the delegates felt that the President would always be a person of integrity, and that his appointment of justices would be tempered by the understanding that the appointee would have an affect the liberties of the American People. Again, Alexander Hamilton shows us the intention:

A single well-directed man, by a single understanding, cannot be distracted and warped by that diversity of views, feelings, and interests, which frequently distract and warp the resolutions of a collective body.

They did, however, concede that a President could be corrupt in making agenda-related appointments. Thus, the Senate confirmation:

…. The necessity of their [the Senate’s] concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

In theory, and in practice, the check and balance has been good and well thought out. Unfortunately, I don’t believe that our founders counted on how much money would be involved in elections, appointments, and lobby-related agendas.

In this country, we would like to believe that our politicians, and elected officials, maintain a certain amount of integrity. The founders of the constitution have this same desire of belief that integrity would always remain in the government. Despite this hope, Man will always be prey to temptation. We cannot continually make laws to prevent political pandering, that is why, ultimately, the will of the people must audit and ensure integrity in our government, through elections and impeachment.

The question has been asked whether life terms for Supreme Court Justices creates an access for political influence. After all, sitting on the same Court for 25 years, or more, would create an awful temptation to attempt to influence the course of government.

Our founders thought’s were that only someone whose term was not temporary could effectively maintain the rights of the people:

That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence.

Unfortunately, Hamilton may have been wrong in this statement. Political influence has pervaded our courts. Lobbyist money has pervaded our Congress and Presidency. Due to these perversions to our governmental system, changes do need to be made to re-ensure the rights and will of the American People.

So, what is the solution?

Currently, 9 Justices serve on the Court. They will continue to serve until they retire, die, or are removed from office through impeachment. There currently isn’t even a way to remove a sitting judge that is incapacitated, through injury or otherwise. The only way to create reform in the Supreme Court would be to ratify a new amendment to the Constitution involving a new appointment system to the Supreme Court.

Here, Romania shows us the way. Their legal system follows the Napoleonic Code. Their highest court, The Constitutional Court of Romania, seats 9 justices for 9 year terms. Three judges are appointed by the Chamber of Deputies, three by the Senate, and three by the president of Romania.

I propose that we should adopt this system. 9 justices, seated for 9 year terms. Appointments for 3 seats made every 3 years. One appointment each is given to the Senate, the House, and to the President. Judicial selection and review will be maintained in each division respectively.

What does this do?

Firstly, this limits long term political influence. Currently, a sitting judge is termed for life. Should any of those nine judges fall to the temptation of political influence, the only action would be an impeachment process, which may or may not involve them being removed from office. With term limits of 9 years, each judge is guaranteed to rule during a full presidential term, however, the term limits exposure to political agenda.

Secondly, the selection and appointment of 3 judges being given to 3 separate divisions minimizes political influence, as judicial selection would be secret to the respective division. The selection and approval process would be conducted in closed door sessions.

Largely, in this proposal, the selection and approval process would remain the same as it is now, for Presidential Appointees. In this proposal, however, each division will create their own bi-partisan (i.e. No single party majority, my suggestion would be 3 members from each of the two dominating parties) selection committee to vet and approve eligible candidates, then as a whole approve and appoint one person.

This takes the selection process out of one person’s (The President) hands and places the responsibility in each branch for their own appointees. As well, even though the President can select and approve his own appointee, the balance to that check comes in the fact that the Senate and the House will be making their own appointment, independent of the President.

It can be argued that there is still room for political influence with this method, and I would agree. I think that there will never truly be a way to rid ourselves of political influence in the judicial branch of our government, but this process minimizes that as much as possible by spreading the process through the Senate, House, and Presidential Office, and ensuring that no one party has advantage over the other.

I do not believe that the Supreme Court should, “if at all possible, find a law to be constitutional”. The Supreme Court shouldn’t stretch interpretation to fit each new circumstance before them. The Constitution says what it says, and a law presented to them is either constitutional or it is not. To find a law unconstitutional, but to admit continuing to interpret the Constitution in a way that will allow it to become constitutional is a gross misconduct.


National Archives – The Constitution of the United States of America. (n.d.). Retrieved July 23, 2012, from National Archives:

Pompeian, E. (2005, July 11). What Did the Federalist Papers Say About Supreme Court Appointments? Retrieved July 27, 2012, from History News Network:

Roberts, C. (2012, June 28). Majority Opinion – Affordable Health Care Act. Retrieved July 22, 2012, from Supreme Court Website:

Romanian Law. (n.d.). Retrieved July 27, 2012, from Jurist Legal Intelligence:

Scalia, A. (2009, Febraury 23). Uncommon Knowledge: Antonin Scalia. (P. Robinson, Interviewer)

The Founders Constitution. (n.d.). Retrieved July 23, 2012, from University of Chicago Press:

 The Big Brother Smackdown Series

(aka. Little Brothers Rant)

  1. The Constitution – Federal vs. State Government
  2. Career Politicians – The Source of Bad Government
  3. Political Parties – Democrats, Republicans, and Those Other Guys
  4. People’s Rights as Collateral Damage in The War on Terror
  5. The Clueless Generation
  6. 2012 Elections
    • President Obama
    • Mitt Romney
    • What are you supposed to do about it?
  7. My Solution


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