It was 70 years ago in a four-story brick public school building on the south side of Chicago that was already 40 years old. It smelled of sweeping compound, library paste, chalk dust and children.
In the large first-floor kindergarten room were 25 freshly scrubbed and eager to learn little moppets. Sitting in their Lilliputian desks facing Mrs. Gartland, an oversized grandmotherly type in a print dress, they eagerly awaited the beginning of the adventure known as school.
“Class, please stand next to your desk, face the flag, place your right hand over your heart, and repeat after me: ‘I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one nation, indivisible, with liberty and justice for all’”.
Back then, every school day was started that way. I have no idea how prevalent the Pledge of Allegiance is in schools today. I suspect, not very much.
Throughout childhood the concept of these United States standing for liberty and justice for all was a given.
Liberty; the quality or state of being free from arbitrary or despotic control.
Justice: the maintenance or administration of that which is true and logical in the adjustment of conflicting claims or the assignment of punishments.
Article 3 of the Constitution of the United States deals with the judiciary.
Section 1
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.
Section 2
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Section 3
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
(1) The high court generally has a great deal of leeway over its case load, but there are some cases they must accept.
Two statutes, 28 U.S.C. §§1253 and 2284(a), require the court to hear “reapportionment cases,” which deal with how states divvy up their territory for federal and state elections.
That’s “a serious problem because there are a lot of cases that come up,” via these statutes that would be the kind of case that the court “might deny cert in, to let the issue percolate,” Chief Justice John G. Roberts said in 2015. But “no, we have to decide it on the merits,” he said.
The court’s mandatory review in redistricting cases has its roots in Ex Parte Young, 209 U.S. 123 (1908).
In that case, the Supreme Court said that a federal judge could stop a state attorney general from enforcing an unconstitutional state statute, even in light of sovereign immunity doctrines, which limit suits against states
Nevertheless, both liberals and conservatives have used the special procedures associated with these redistricting cases to advance their causes at the Supreme Court.
When the courts hand down rulings that Congress doesn’t like, lawmakers sometimes retaliate by trying to take away their power to hear certain kinds of cases at all or strictly limiting what they can do.
Why does Congress get to take cases away from judges or change the rules for hearing them? Judges weren’t the heroes of the Revolution. They were appointed by the British crown. “So even after Independence, judges carried a lot of historical baggage.
The Constitution’s drafters gave Congress weapons to use against the courts without giving judges much to defend themselves with.
The president can draw his veto pen if Congress goes after him. The Supreme Court has to find a straight-faced way to declare a law unconstitutional when it weakens the judiciary’s powers.
A law Congress passed in 1996 says that the federal courts can’t grant a habeas petition that state courts have turned down unless the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” That is a high bar.
The federal courts can only look to see whether the Supreme Court has already said it’s not fair. If they don’t turn up a case that’s on point, they are to leave the state court’s decision untouched.
There are reasons for federal judges to defer to state judges—among them the principle of comity, according to which different branches of government show respect for one another, and the principle of finality, which in this context basically means that you get your habeas crack in the state courts, and that’s enough.
Work at the Supreme Court is divided into two main categories. One is deciding the cases it hears on the merits: the 70-some cases each year that the court selects for extensive briefing, oral argument and a substantial written opinion, sometimes with dissents.
These are the cases we hear about in the news.
The orders docket includes nearly everything else the court must decide — which cases to hear, procedural matters in pending cases, and whether to grant a stay or injunction that pauses legal proceedings temporarily. There are no oral arguments in these cases and they are often decided with no explanation.
Despite their obscurity, these orders — there are thousands each year, if you count decisions not to hear cases — are significant. Different groups of justices dissented in some of the cases, but the court did not explain any of them.
This lack of transparency has a practical impact. Because the court doesn’t issue opinions in these cases, lawyers don’t know what legal standards to apply when litigating the issue again in the future. And because we don’t even know which justices have joined most of the orders, we don’t know which justices are responsible, and we don’t know whether the justices are being consistent and principled from case to case.
These procedural issues also affect the lower courts, which are supposed to follow Supreme Court precedent. But because the lower-court judges don’t know why the Supreme Court does what it does, they sometimes divide sharply when forced to interpret the court’s non-pronouncements. The orders can influence the substance of litigation, too, because a key factor in procedural cases is whether the claim has merit.
Americans are inclined to have a very exalted conception of the judiciary’s role in our nation’s political life. Most of us think that the first task of the courts is to act as a check on the other branches of the federal government. This understanding tends to identify the federal courts with their power of judicial review, i.e., their authority to declare void acts of the other branches that are contrary to the Constitution. Today, if one asks an ordinary citizen what the job of the nation’s courts is, he or she is likely to answer with something along these lines.
In addition, many Americans understand the power of judicial review as including a vast responsibility to decide what is right or just for the country on the big questions of domestic policy. On this view, the exercise of judicial review requires the courts to seek the moral meaning of the Constitution or to inquire into the spirit of justice that informs our fundamental law. For those who hold this view, it is not surprising, but rather to be expected, that the Supreme Court would finally settle for the nation our debates about issues like abortion and same-sex marriage.
Finally, most Americans believe that the Supreme Court’s judgments on the momentous questions entrusted to it are final—that they cannot, except in the case of formal amendments to the Constitution, be revisited by any authority other than the Court itself. That is, most Americans today believe in judicial supremacy. They think that the Supreme Court is supreme not only over all other American courts, but also over the other branches of the federal government.
Although the courts have always held a key place in our constitutional system, this very lofty conception of their authority has largely arisen over the past several decades. The rise of this view can be traced in part to the influence of modern liberalism, which has used the courts as instruments of social and political change and has accordingly had to bolster the authority of the judiciary.
Since many of these policies are not clearly required by the text of the Constitution—or, in the case of affirmative action, may even be in tension with it—the Left has had to argue for a more free-wheeling kind of judicial review. Hence the Left’s defense of moralized readings of the text, not merely to enforce clear constitutional provisions, but to vindicate what it holds to be fundamental values, as well as interpretations intended to keep the Constitution “living,” or in tune with what the Left believes to be the prevailing norms of the day. And, since many of the Left’s causes have been so controversial, it has had to foster an exalted conception of the Court’s authority, lest citizens and their elected leaders push back, trying to reverse through political action the gains won through litigation.
This expansive modern understanding of the judicial power is inconsistent with the argument put forward in the single most authoritative commentary on the Constitution to emerge from the founding, The Federalist. Although The Federalist affirms the power of judicial review, and hence the role of the judiciary as a check on the other branches, it does not present this as the first or most important function of the courts. Moreover, The Federalist does not support the vast implications of judicial review as it is often understood today—as including a power to decide the great moral issues of our time and to keep the Constitution in tune with contemporary values.
Finally, The Federalist lends no aid to the modern view of judicial supremacy, the belief that the Supreme Court is the ultimate interpreter of the meaning of the Constitution, unanswerable for its interpretations to any authority but itself. On the contrary, The Federalist points instead to the older view, sometimes called “departmentalism,” that each of the branches of the federal government—legislative, executive, and judicial—is co-ordinate and co-equal with the others, and that each therefore has an equal power to interpret the Constitution authoritatively in the execution of its own powers.
The court is in the spotlight more and more. Transparency in all its decisions is vital to its continued legitimacy. But, when all else fails, when the Judiciary becomes activist rather than deliberative, the elected representatives of the people can have their say through Congressional action.
Letting Congress strip the courts of the authority to hear certain claims or cases means giving more power to the people, who can elect their lawmakers but not their federal judges. From a pre-Revolutionary vantage point, that made sense… and it still does today.
To learn more about the Constitution in plain and easy to understand English consider purchasing the book “A Republic, if you can keep it” available through http://patsanswers.com/blog for $16.99 plus shipping and handling. For further information email librarian@patsanswers.com
