Judicial checks & balances

The U.S. Supreme Court recently side stepped important constitutional questions with procedural rulings and in doing so allowed President Trump to proceed with election interference and construction of the Trump Mahal.

In the election interference controversy, a 6-3 majority of the Court ruled that the US Postal Service can continue with compiling a registered voters list of U.S. citizens who can receive absentee ballots through the U.S. mail, but additional Trump ordered voter interference steps would be subject to review when taken. The Trump Mahal 5-4 ruling came down to a question of who can show actual harm from Trump’s demolishing the East Wing of the White House and ordering the construction of a hall that will rival Versailles.

The rulings are consistent with the Constitution’s Judicial Article requirement that all legal elements of a true legal case or controversy must be present before the judiciary can assert jurisdiction.The rulings are also consistent with the procedural doctrine that extends full discretion to the Court to decide if the required elements are present or not.
In brief, a majority of the Court used its jurisdictional discretion to decide not to decide if the King had exceeded his Constitutional authority. In doing so, the Court again has embraced the unitary theory of executive powers at the expense of the separation of powers doctrine.

The conservative Court fears no pushback in response to the rulings above from Congress because the Republican majority in Congress lacks the courage to challenge these executive usurpations of Congressional power to authorize major changes to the White House and all other National Park facilities and to revise provisions of state-approved election laws.

If the Republican Party were to lose control of the House and Senate following the November midterm election, the Court may feel the sting, for Congress possesses ample power to push back when the Court fails to respect Congressional prerogatives. Indeed, Congress’s power over the judiciary is substantial.

Article III or the Judicial Article of the US Constitution provides, “The Judicial power of the United States shall be vested in one Supreme Court and such inferior courts as Congress may from time to time ordain and establish”. The Article also assigns original jurisdiction to the Supreme Court over cases and controversies involving ambassadors, ministers and counsels of the United States and states of the United States. Article III further assigns appellate jurisdiction to the Court over a variety of federal cases defined by parties involved and subject matter subject to Congressional alteration. In the famous 1803 Marbury vs Madison ruling the US Supreme Court held that the original jurisdiction of the Court cannot be diminished nor expanded by law of Congress, but the power of Congress to alter the legal authority of the US Supreme to review lower court rulings was not disturbed. All of this is to recognize that the full structure of the federal judiciary and the appellate jurisdiction of our nation’s highest Court is subject to Congressional alteration. Knowing this, members of the U.S. Supreme Court historically have been hesitant to uphold the assertion of executive powers over established Congressional powers until now.

What might a Democratic majority in the U.S. House and Senate do to reign in an executive friendly court? Congress could legislate a mandatory code of ethics for the Supreme Court. A new Congress could strip the U.S. Supreme Court of all or a portion its appellate jurisdiction and assign the final power of judicial review of lower court rulings to a new appellate court situated between our 13 U.S. Circuit Courts and the U.S. Supreme Court. In addition, Congress could alter the membership of the U.S. Supreme Court or approve a law that would require reassignment of Supreme Court justices to a lower federal court after a given number of years on the Supreme Court. With a majority in the US House and a 2/3 super majority in the US Senate, Congress could impeach and remove one or more members of the Supreme Court. Congress could legislate new and more restricted calendars for the Supreme Court or cancel a yearly term entirely as the Jeffersonian Republicans did in 1801. Congress could also reduce the budget of the Supreme Court and other courts that fail to accord deference to Congressional prerogatives.

I once believed that mere knowledge of these Congressional powers would persuade the justices of the Supreme Court to remain in their own power of interpretation lane and leave partisan politics to the legislative and executive branches. I no longer believe that to be true because of the obvious reluctance of the current Congress to resist executive and judicial usurpation of Congressional powers. The midterm election may bring us a reconstituted House and Senate that will be more willing to assert one or more of its Constitutional checks over the Supreme Court in an effort to bring the Court back to its intended nonpartisan role.