[speechlesstx]

An interesting op-ed in th NY Times today:

By JEAN EDWARD SMITH
Published: July 26, 2007

WHEN a majority of Supreme Court justices adopt a manifestly ideological agenda, it plunges the court into the vortex of American politics. If the Roberts court has entered voluntarily what Justice Felix Frankfurter once called the “political thicket,” it may require a political solution to set it straight.

The framers of the Constitution did not envisage the Supreme Court as arbiter of all national issues. As Chief Justice John Marshall made clear in Marbury v. Madison, the court’s authority extends only to legal issues.

When the court overreaches, the Constitution provides checks and balances. In 1805, after persistent political activity by Justice Samuel Chase, Congress responded with its power of impeachment. Chase was acquitted, but never again did he step across the line to mingle law and politics. After the Civil War, when a Republican Congress feared the court might tamper with Reconstruction in the South, it removed those questions from the court’s appellate jurisdiction.

But the method most frequently employed to bring the court to heel has been increasing or decreasing its membership. The size of the Supreme Court is not fixed by the Constitution. It is determined by Congress.

The original Judiciary Act of 1789 set the number of justices at six. When the Federalists were defeated in 1800, the lame-duck Congress reduced the size of the court to five — hoping to deprive President Jefferson of an appointment. The incoming Democratic Congress repealed the Federalist measure (leaving the number at six), and then in 1807 increased the size of the court to seven, giving Jefferson an additional appointment.

In 1837, the number was increased to nine, affording the Democrat Andrew Jackson two additional appointments. During the Civil War, to insure an anti-slavery, pro-Union majority on the bench, the court was increased to 10. When a Democrat, Andrew Johnson, became president upon Lincoln’s death, a Republican Congress voted to reduce the size to seven (achieved by attrition) to guarantee Johnson would have no appointments.

After Ulysses S. Grant was elected in 1868, Congress restored the court to nine. That gave Grant two new appointments. The court had just declared unconstitutional the government’s authority to issue paper currency (greenbacks). Grant took the opportunity to appoint two justices sympathetic to the administration. When the reconstituted court convened, it reheard the legal tender cases and reversed its decision (5-4).

The most recent attempt to alter the size of the court was by Franklin Roosevelt in 1937. But instead of simply requesting that Congress add justice or two, Roosevelt’s convoluted scheme fooled no one and ultimately sank under its own weight.

Roosevelt claimed the justices were too old to keep up with the workload, and urged that for every justice who reached the age of 70 and did not retire within six months, the president should be able to appoint a younger justice to help out. Six of the Supreme Court justices in 1937 were older than 70. But the court was not behind in its docket, and Roosevelt’s subterfuge was exposed. In the Senate, the president could muster only 20 supporters.

Still, there is nothing sacrosanct about having nine justices on the Supreme Court. Roosevelt’s 1937 chicanery has given court-packing a bad name, but it is a hallowed American political tradition participated in by Republicans and Democrats alike.

If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.

Thanks Jean, give this congress more ideas.

What am I missing here? First, Smith makes sure we know "the court’s authority extends only to legal issues," yet closes with suggesting congress "could provide a corrective" if this court "persists in thumbing its nose at popular values."

It sounds somewhat to me like he wants us to believe this is an (conservative) activist court going beyond it's authority while wanting a court friendly to his (liberal) values. What say you?

[speechlesstx]

Oh, I forgot to include the nice little picture accompanying the column... by Oliver Munday, Copyright 2007 The New York Times Company of course

[ETWolverine]

Anyone who believes that the Supreme Court as currently constituted and operated isn't a political body is being foolish and naïve. If we keep in mind that the Judiciary branch of government is co-equal with the Legislative and Executive branches of government, then if becomes understandable why the court would be political. And the SCOTUS weilds that power by deciding what cases it will hear and what cases it will not... a decision which must, by nature, include political considerations.

I don't have a problem with that, in and of itself. The Court can use whatever methods to choose its cases that it wishes. That's fine.

What I have an issue with is when the DECISIONS are not based on Constitutional law or even on American law, but rather on political considerations. Then the Court is overstepping its bounds. The Court has a Constitutional responsibility to uphold the Constitution and laws of the USA. If they ignore law completely in favor of politics, they are ignoring that responsibility. And when that becomes true, we have a problem.

Both the Executive and Legislative branches have the power to reign in the Supreme Court in that case.

The Legislative branch can decide to limit what cases the Supreme Court has jurisdiction over to cases dealing with international treaties, treason, ambassadors, maritime cases, and specific questions of Constitutional law... in other words, to the specific jurisdiction granted by the Constitution.

They Legislative branch can also limit the number of seats on the Court.

And the Executive Branch can simply refuse to enforce the Court's decisions. The SCOTUS only makes the decisions, they do not enforce them. Enforcement is an EXECUTIVE authority, and the Executive branch can simply refuse to enforce the decision made by the SCOTUS, or enforce it only to some minimal extent. The SCOTUS can't do anything about that.

So I do not elieve that the court can or will get "out of hand" in the way that Smith makes it seem. There are too many checks-and-balances in place to allow that to happen.

BUT, at the same time, there are clear indications that the Court does make decisions based on politics rather than law fairly often. That much I agree with.

Elliot

[tomder55]

I bet you Snarlin' Arlen put them up to this .He is angry that they have not been following those super-duper precedents.

How has the Roberts Court thumbed its nose at popular values?. the partial birth abortion decision? That was over overwhelmingly passed Congress and signed into law by Bush. Abortion is still legal in spite of that decision.Besides ;when did popular values become a legal term ? If popular values were the criteria then a whole slew of decision would not have been made.

The manipulative evil genius who is too stupid to be President didn't think of this plan.. eh ? I don't recall this type of belly-ache by the Slimes when Earl Warren and William Brennen were in charge of the court .

This article just lets everyone know what is truly at stake in the 2008 election.

I just don't get it. It took all types of effort just to get the court somewhat balanced. Now I do not agree with some of the decisions coming out of SCOTUS but at least steps are being taken to moderate some of the radical decisions made in the last half of the 20th century.

I will remind Jean Smith however that FDR upset that SCOTUS was striking down so many aspects of his New Deal legislative package attempted to stack the court .He did not get the results he desired. There was a huge public backlash because they saw through the manipulation behind the attempt and he could not get it out of Congress. But at least FDR had a feeble rationalization that he tried to sell to the public. He said that judges over 70 years old (the conservative majority on the court at the time) needed help with the work load. It was a pile of bull chips but Smith peels away any rational reason beyond pure politics for a justification.

[ETWolverine]

Besides ;when did popular values become a legal term ? If popular values were the criteria then a whole slew of decision would not have been made.

Yep. You can forget ending slavery. And the entire civil rights movement would have simply ceased to exist. Women's suffrage? Forget it. I could go on, but Tom's point is a good one all on it's own.

... Smith peels away any rational reason beyond pure politics for a justification.

Yes... while at the same time decring the Court for making decisions based on pure politics as a justification. Anybody here see the hypocrisy of this article?

[speechlesstx]

Anyone who believes that the Supreme Court as currently constituted and operated isn't a political body is being foolish and naive.

Thanks Elliot, great answer. Anyone that doesn't think it's political has never seen a confirmation hearing. Personally, I don't think it's naivety though, these people know full well what they're talking about. This writer either forgot to cover his tracks or just wanted us to think one thing while intending another in first speaking of "legal issues" but ending with "popular values."

[speechlesstx]

Anybody here see the hypocricy of this article?

I think it's fairly obvious I did :D

[speechlesstx]

How has the Roberts Court thumbed its nose at popular values?

I can answer that, he and Alito were confirmed. You should be well aware that all it takes to draw the wrath and scorn of the left is to exist outside of their influence. To actually have power, that's doubly evil.

This article just lets everyone know what is truly at stake in the 2008 election.

You got it bro.

at least steps are being taken to moderate some of the radical decisions made in the last half of the 20th century.

Now tom, don't you know that was 'progress'? :D

[Choux]

The Supreme Court as devised by the Founding Fathers was to be a group of upper class gentlemen who held power over the legislative efforts of the possible riff raff Congressmen who might pass laws unacceptable to the patriarchs.

The Conservatives, not the Democrats, have controlled the Supreme Court for more years over our history and influenced legislation passed by Congress by finding it unConstitional.

[ETWolverine]

The Supreme Court as devised by the Founding Fathers was to be a group of upper class gentlemen who held power over the legislative efforts of the possible riff raff Congressmen who might pass laws unacceptable to the patriarchs.

Ummm... no, that is not historically accurate. If you bother reading the Federalist Papers, Chou, you will find that the Supreme Court was actually designed to be the weakest of the three legislative bodies on purpose. The Legislative was actually supposed to be the most powerful, they being the elected representatives, while the Executive body was supposed to be it's equal or near-equal in power, and only taking primacy during times of emergency. The Judiciary was designed to be weak so that they could not influence the political process too much.

The Conservatives, not the Democrats, have controlled the Supreme Court for more years over our history and influenced legislation passed by Congress by finding it unConstitional.

This statement is true enough, but it doesn't tell the whole story. Yes, the conservatives did control the court for most of our history, but for the most part, their votes were to maintain an originalist stance toward interpretations of the Constitution. Only since liberals have come into controlling the court has "emanations and penumbra" and "living document" and "popular values" and foreign law become the basis for making court decisions that agree with their own personal political stances.

Elliot