SCOTUS and a possible constitutional crisis

When it comes to the question of ethics, the presidency and SCOTUS historically escaped limitations on their powers. While the rest of us must pay attention to a set of rules, this does not apply to those at the top of the pyramid of our society. They are free to roam the range as they see fit.

Legal columnist Amanda Marcotte recently brought into full focus the joke that is the effort by SCOTUS to “clean house” and for the first time clearly face what the rest of us have known for some time: The unspoken understanding that current efforts by SCOTUS to “clean up its act” is comparable to “erecting a dam with a chain link fence”…all confirming that the majority of SCOTUS continually “refuses to get why people hate them.” All making it a growing mystery as to why this is so, and nothing has been done so far to make a correction.

Writing in Dobbs v. Jackson Women’s Health Organization, the case in which SCOTUS overturned Roe v. Wade, Justice Sonia Sotomayor noted that “there’s so much that’s not in the Constitution, including the fact that we have the last word. Marbury versus Madison. There is not anything in the Constitution that says that the Court, the Supreme Court, is the last word on what the Constitution means. It was totally novel at that time. And yet, what the Court did was reason from the structure of the Constitution that that’s what was intended.”

So how to correct this sooner than later? Otherwise, a constitutional crisis could occur developing from the current “lay of the land.”

The foundational question now facing America is why has this happened, and more importantly the reason that it has remained uncorrected? Joshua Zeitz, a Politico Magazine contributing editor, discusses this and suggests what would occur were Congress to strip SCOTUS of its jurisdiction. There would likely be widespread confusion about the implications.

There appears to be an incorrect assumption that SCOTUS can run rampant according to its own whims. This is not so.

Defenders of judicial review appropriately point to Federalist 78 as evidence that Hamilton believed the Constitution contained an implicit power of judicial review. But he also believed that Congress could adjust the jurisdiction of SCOTUS.

In the late 1860s, federal authorities jailed William McCardle, a newspaper editor, under provisions of the 1867 Military Reconstruction Act. McCardle sued for his freedom, citing the Habeas Corpus Act of 1867. Congress denied the justices jurisdiction in the matter, and the court conceded that it was powerless to act.

Writing several decades later, Justice Felix Frankfurter, an FDR appointee, noted that “Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice.”

Chief Justice Warren Burger, whom President Richard Nixon placed on the bench, agreed, writing that Congress could pass simple legislation “limiting or prohibiting judicial review of its directives.”

No less than the executive and legislative branches, the judiciary — particularly SCOTUS — is limited in just how much power it can exert. Congress and the president may exercise their right to check its power.

In theory, Congress could very easily pass legislation denying SCOTUS jurisdiction over certain areas at its will. “If they so choose, Congress and the president could go further, reducing the court to a shell of its former self, leaving it to adjudicate minor matters of little significance.” However, this could be controlled by the filibuster, whether to increase or decrease the membership of SCOTUS, which probably would eliminate this option even if wise.

A world in which a highly partisan and increasingly unpopular SCOTUS finding its jurisdiction routinely controlled by Congress would not appear to be a guarantee of political stability.

With every change of control, a new Congress and president could overturn precedent and lock the court out of its intended role as a constitutional arbiter, subject to widespread confusion over the outcome, were Congress to strip SCOTUS of its jurisdiction over a plethora of judicial doctrines. Would it then be left to lower courts to adjudicate cases? And what if they disagreed?

Conversely, today’s SCOTUS majority claims largely unchecked power. Were it to lose popular support, the powers it has claimed for itself would become either unenforceable, or subject to congressional restraint. Ultimately, notwithstanding what SCOTUS may assert as its powers, it is the responsibility and prerogative of the executive and legislative branches to encourage “greater restraint and humility on the part of the judiciary.”

Judicial review is well-rooted in American political tradition. But so are checks and balances. The president and Congress can check the power of SCOTUS when they believe the justices have exceeded their mandate. This might be the best way to save the court… from itself.

But to do so, Congress might first have to shrink the membership of SCOTUS. There is no system in place to force recusals when there are conflicts of interest. The current spineless attempt to fill the void is an insult to the intelligence of the public. The unanswered question remains: Why should SCOTUS not require the same code of ethics as those enforced on lower courts?

Begrudgingly, SCOTUS has made a feeble attempt at adoption of a meaningful code after an unremarkable effort to do just that, insisting that its recent work product is one they will be bound to follow as have other judges remedied the problem by doing so. However, if this be the case, why “reinvent the wheel” when the same code of ethics can apply to all courts?

The idea of adopting this new code for SCOTUS obviously was to dispel the general perception that the court has carved out a special place, nonetheless, distinguishing itself from all the other federal courts.

The remarkable aspect of this rather simple action was how long it took SCOTUS to follow its own rules and police itself. Notwithstanding this movement, it remains for each justice to decide for him/herself how to act.

There is no change in the permission retained by each justice as to when or whether there should be a recusal in any given case. Why should they, the regulated, be permitted to determine for themselves when it comes to ethics? Why should there not be the same objective standard regarding enforcement of ethical requirements for all courts at all levels?

What gets lost in the mix is the authority of SCOTUS to declare a legislative or executive act in violation of the Constitution, is not found within the text of the Constitution itself but rather was established as the doctrine in the case of Marbury v. Madison (1803).

Likewise, with ethical standards utilized by SCOTUS itself.