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Eight justices should be enough.

August 22, 2016

You know how you sometimes just skim the headlines instead of reading each article in order? You don’t even read every word. Just fragments of ideas penetrate your brain.

“Europe’s oldest living inhabitant…” “Otzi the Iceman’s wardrobe… “Ginsburg says court can’t function this way”, “…war on robocalls”

Er-er-er-r-r-r-r-k!  That’s your brain catching up with your eyes.

Wait. WHAT did that say?!?

It said “Ginsberg said “eight justices was not good enough” to decide several crucial cases.”

OK, maybe that wouldn’t put a kink in your cerebral cortex. Follow along anyway.  After all, whoever we wind up with in the way of a President will have a lot to say about the political makeup of the Court.

The article itself was simply a straightforward presentation of why Justice Ginsburg doesn’t like the eight-person Court.

Based on the Court as it is today, she’s quite right in her opinion. Divided as it is along political lines, the upcoming cases she cites probably can’t be adjudicated along her favored party’s ideological lines.

Her conservative colleagues probably feel the same way.

Based on what most people’s idea of what the Court is theoretically supposed to do, that’s a bit of a crock.

Assuming (and we all know what that will do to you) that a court of law is supposed to decide cases based on the law, not the judge’s political bias, why should it matter how many people sit on the bench?

Let’s recap.  If the Congress writes laws and  the President either accepts or rejects the law as written what then is the Supreme Court’s role?

Under the Constitution, the Court either reviews and rules on cases brought before it as an appellate body based on those previously created laws, or if it is a Federal law, it can sometimes function as the court of original jurisdiction.

At no point in the Constitution does it say or imply that the Court is supposed to throw the game by ruling in favor of the ideology of one political party or the other. That’s kind of why ol’ Lady Justice is blindfolded.

It seems as though the right course of action would be for the Court to rule not for or against the ideology of a party in the suit, but to decide if the law itself has been broken or misapplied.

If that is the working premise, then perhaps an even number of judges from both sides of the aisle is exactly the right amount.

True, initially that’s going to mean that an awful lot of cases will stand or fall based on the lower court decisions.

That’s actually OK.  If the law is so ambiguous or poorly drafted as to make it undecipherable, maybe it’s OK to just say “we pass.”

Eventually however, people will notice that a hyper-partisan Court is no more effective and certainly no more unbiased than a hyper-partisan Congress.

You know the old saw…if you don’t like the law, then change it. But as long as it exists, shouldn’t SCOTUS rule on the law it has in front of it?

Obviously, judges are people too. They will have personal biases. However, as supposedly impartial and dispassionate jurists, they are supposed to set those aside so that they rule on the law, not use it to inflict their personal agendas on the entire country.

If that’s not the way it’s going to work, then shouldn’t we all have a chance to vote on who sits on the bench and for how long?  At least seven states do it that way in whole or in part, so why not the Feds?

To those that feel that electing the country’s top judges would introduce a greater chance of corruption of the process into the legal system you might ask yourself – greater in relationship to what? Existing practice or the judicial ideal?

At least under the open election scenario we wouldn’t need to wait for a decision.  If the case was brought by liberals against conservatives in a liberal-dominated Court, you’d have probably an 80 percent  chance of knowing what the decision would be in advance, and vice-versa. That might even reduce the Court’s case load.

With apologies to Justice Ginsburg;  Right conclusion, wrong argument.

From → op-ed

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