The small university I attended, in its prudence and efficiency in the courses and majors that it offered to its students, offered courses that could be counted toward more than one major or minor. So as a result of that, as a history major and English minor headed toward earning a secondary level teaching certificate, I took a course called "American Constitutional History and Law," which counted toward my major, but which pre-law students could also count toward theirs. The small school had just one professor who taught upper division pre-law courses, and she was an outstanding expert in the field.
Yes, she was a female, which, at that time, was unusual in a small, denominationally affiliated university where 80% of the faculty in every discipline except education, was male. She was the only full-time professor who taught pre-law courses, the others being attorneys who were alumni, and were adjunct professors. But it wasn't her law school background, or experience as a practicing attorney that I thought made her the expert in constitutional law that she was. It was the fact that she was an immigrant, a Palestinian Christian refugee from the West Bank, who went through the process of studying the Constitution and learning about it in order to become an American citizen, which she did, during the middle of her teaching tenure.
It was her experience in becoming an American citizen that gave her a deep appreciation for the freedom that her citizenship gave her, and her love for this country that was so visible in her teaching, and made her such an effective instructor. She knew the Constitution, and the history of amendments and judicial rulings better than anyone I have ever met.
All of Our Discussions About the Court Were Possibilities, Not Realities Back Then
My four years in college coincided with the four years of the Carter administration. I started in the fall of 1975, a year prior to his election, and graduated in the spring of 1979, just prior to the beginning of his campaign for re-election, and just a few months prior to the Iranian hostage crisis that brought down his Presidency. The court had Nixon's fingerprints all over it, through the justices he appointed were far less partisan ideologues than those appointed by any Republican President since then. Justices White and Marshall, appointed by Kennedy and Johnson, were the only ones appointed by Democrats in the White House.
So it was, in that college level Constitution course, that the discussion often turned to possibilities that the potential existed for a Supreme Court to become partisan, and upset the delicate separation of powers that was one of the keys to democracy's survival. Even in the fall of 1978 and the spring of 1979, my professor sensed that change was coming, and that events in the Middle East would push the United States toward a more conservative political atmosphere. And the influence of that push would have its most profound effect on the American judiciary, including both the federal court system, the appeals courts, and the Supreme Court.
"Those positions are lifetime appointments," I can still hear her say, "And so the ideology and partisan influences of Republican Presidents have the potential to last for generations after they are out of office, especially if they are re-elected."
That was combined with her prediction that the United States was turning conservative because of fear of events occurring in the Middle East. There would be a reaction, she insisted, to the Carter-led initiatives which brought about the Camp David accords, on the more radical side of Arab Islamic activism, something that she observed growing up in Beirut. And she was convinced that an election, which included the effects of a right-moving reactionary influence, would lead to a more activist, more partisan, less impartial Supreme Court.
To the students in a small, religious-affiliated college in what was a very red state at the time, the thought that Presidents would appoint justices for partisan political influence was difficult to grasp. Presidents, regardless of partisan affiliation, were supposed to take care to preserve the separation of powers by appointing justices to the court on their merits and as an advancement of their achievement, not pluck them out of the federal judiciary because they had a more partisan reputation and might consider themselves obligated to the President who appointed them well over their qualifications. Past history, at that point, could easily be forgotten or ignored.
I cannot imagine what she would be saying in a Constitutional history and law class now, were she still teaching. Our discussions of what a partisan Supreme Court might do were all theoretical. But here we are, with a court that is no longer hiding its partisan favor, uniting as a gang of six to back a President who is openly abusing the powers of the office of the Presidency. In her rebuke of Justice Ketanji Brown Jackson's strong language in the minority opinions she has written, Justice Amy Coney Barrett more or less admitted that this court doesn't care about the Constitution, it cares about what Trump wants to do.
What Can Be Done With a Renegade Court?
Our discussions in that college course often involved the difficulties that would occur when a group of justices, appointed for life, become unaccountable to the people, and obligated to the demagogue who appointed them. It was difficult to imagine the kind of hard line partisanship that would prevent the most obviously corrupt and dishonest members of the federal judiciary from feeling the sting of impeachment and removal, but the fact of the matter is that this is exactly the position in which we find ourselves. The two thirds majority necessary for removal, when Democrats hold a slim majority, means convincing somewhere between 12 and 14 Senators, give or take a few, with the evidence.
I doubt that there is a single honest Republican Senator now, who would bother to look at the truth.
The opportunity to change the makeup of the court, without waiting around for the bad ones to kick the bucket, came just once, between 2020 and 2022, when Democrats had the majority in both Houses and President Biden was in the White House. Maybe hindsight has given some Democrats a better perspective on this lost opportunity of a lifetime. It would have been a bold, and perhaps risky move to take the necessary steps to pack the court by amending the judiciary act to add five seats for Biden to appoint, neutralizing the conservative majority. It would have meant parting ways with the undemocratic and stupid Senate filibuster for good, something the old school Democratic Senators seemed loathe to do.
But it would have neutralized the Trump appointees bent on supporting his agenda. Imagine the possibilities. Trump's trials on indictments related to his incitement of insurrection, and stealing classified documents would have been expitited by a court that would have swept his delaying tactics out of the room and taken the case themselves. They would have overturned the ridiculously unconstitutional immunity ruling they made, overturned Citizens United, and saved Roe. Trump would likely be in prison instead of in the White House. Whatever needed to be codified into law could have been taken care of before the 2022 elections rolled around.
And I still have an open question about why we didn't do it when we had the chance? Where was the boldness, the insight, the will, or do Democrats still not take this threat seriously?
Winning the midterms, even getting control of the House back, would be a good thing, of course. But the problem is the Supreme Court standing behind the demagogue fascist Trump. Until the makeup of that court is returned to judges who have the integrity and character necessary to properly execute those duties, and these six imposters are impeached and removed, or forced to resign, we will never get our American Constitutional Democracy back.
No comments:
Post a Comment