Oral arguments last week in the United States Supreme Court told me that some justices may need to be “degraded from their stations.” The case involved universal injunctions against the Trump administration. But my suggestion has nothing to do with Trump but the need to restore the basis for civil liberty. We sure could have used Abraham Lincoln and Alexander Hamilton to give Justice Amy Coney Barrett a dose of constitutional reality about the Court.
Many issues were covered in the oral arguments, but a particular colloquy between Justice Barrett and the Solicitor General for the Department of Justice, John Sauer, got my attention. It had to do with the respect the executive branch is to give a judgment and opinion by the United States Supreme Court.
Before saying more, Justice Barrett’s line of inquiry may not have revealed what she thinks. She may have simply wanted to know what the Department of Justice thinks. But from the exchange, I think she and other members of the court think way too much of their station in life.
Justice Barrett asked General Sauer to assume “this week the Second Circuit [Court of Appeals] holds that [an] executive order is unconstitutional.” She then asked, “[W]hat do you do the next day or the next week?” Here is what followed:
GENERAL SAUER: Generally, we follow that.
JUSTICE BARRETT: So you're still saying "generally."
GENERAL SAUER: Yes.
Lloyd Christmas (Dumb and Dumber) might have been happy to know there was a chance the executive branch might go along with a Second Circuit decision in similar cases, but not Justice Barrett. She wanted to know if the executive branch would give the same kind of vague answer to a decision by the United States Supreme Court. Would the executive branch only “generally” follow its decisions or would it follow them categorically?
Here is the General Sauer’s answer. I will then interpret.
GENERAL SAUER: And, I think, in the vast majority of instances, our practice has been to respect the opinion in the [appellate] circuits, but my understanding is that has not been a categorical practice in the way respect for the precedents and the judgments of the Supreme Court has been.
In other words, the executive branch may respect the opinion of a circuit court of appeals, but “categorical” respect is the “practice” when it comes to opinions of the Supreme Court. Put bluntly: The Court speaks, and we bow down no matter how stupid the Court’s reasons are for its judgment.
That has been the practice since 1958. But Abraham Lincoln gave a different answer to the same question.
The following is from a document signed by more than 50 legal scholars after the U.S. Supreme Court decided that males and females have no given nature by which a marital relationship can be defined (Obergefell v. Hodges, 2015). The “stupid” answer given was marriage exists so people don’t “call out only to find no one there.” (I looked, but could not find any “Lincoln” at any level of government in Tennessee willing to say, “Not doing that. Our law is just fine, thank you.”)
In 1857, Abraham Lincoln said “Judicial decisions are of greater or less authority as precedents, according to circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession.” If a decision “had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part, based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent.” If, however, a decision is “wanting in all these claims to the public confidence,” it is “not factious” to resist it.
In other words, no categorical obeisance should be given to any judicial decision with respect to others not before the court. Let me put some real human flesh on that proposition.
The Supreme Court held in 1857 that Dred Scott could never be a United States Citizens. Scott had been born a slave in Virginia, and the Court said slaves were “considered as a subordinate and inferior class of beings” when the Constitution was ratified. His “being” kept him from being a United States Citizen!
Mr. Lincoln said he would not apply that decision to any other person because he thought it was wrong under his test.
How could Lincoln do that? Because his office is different from that of federal judges, and its powers are different from those of federal judges. Moreover, his constitutional duty to uphold the U.S. Constitution as he understands it is equal to the duty of those in the other branches of the federal government. That’s what “separate and equal means”!
I don’t know how the justices will vote in this case or the reasons they will give for their vote. However, if a justice thinks the Court’s judgments are law for the entire nation that all must obey, they are encroaching on the powers of the legislative branch.
In that instance, if I were a member of Congress, I would apply the recommendation of Alexander Hamilton in Federalist No. 81:
Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred . . . [from] the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security.
Turning judgments and court opinions into national laws overturns “the political system” in my opinion.
To the foregoing Hamilton added one my favorite lines:
There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations. (Emphasis supplied)
If a Supreme Court justice thinks the Court can make a law that Congress and the executive branch and our citizenry must “categorically” obey, some U.S. Representative may need to screw up enough courage to at least file articles of impeachment on him or her. A little degradation may be in order.
It is time our civil liberty be re-secured by putting the law that orders our society back in the hands of the legislative bodies we elect. That may sound scary, but at least we have the liberty to vote on them.
