Back to Gaffer's Variety.
Gaffer Variety:
Our Supreme Court 003:
By Willie Gaffer:
August 29, 2005:
Sandra Day O'Connor's recent resignation and the resultant extremist rhetoric about her replacement, has caused me to think abut that powerful body, our Supreme Court. I have come to the realization theat this group of nine people may indeed be the most powerful body in the world. It is not so much that they make law. In fact, it is not their function to make law. However, by the fact that they interpret current events with respect to the Constitution and existing law they do create precedents which are in effect law. In many cases these precedents affect our entire population and sometimes the entire world.
Because of this court's great power, we might think our founders would have clearly defined the court and its powers. In fact, that is not the case. The Supreme Court of the United States is very loosely defined in Article III of our Constitution. The powers of the court are spelled out quite clearly. However, the details of its structure and even its size are left up to the Congress. Take a look.
Article III
Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;--to controversies to which the United States shall be a party;--to controversies between two or more states;-- between a state and citizens of another state;--between citizens of different states;--between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, of forfeiture except during the life of the person attainted.
That is it! Section 3 of this article is about treason and has no bearing on the structure or power of the Supreme Court. Sections 1 and 2 are all there is. It is clear from these sections that the Supreme Court is intended to be the final legal power in America. these nine justices have jurisdiction in pretty much all cases. This does not mean they must exercise that power. They may choose to hear a case or not. If not, the rulings of lower courts are left to stand.
Although the congress is vested with the power to structure the Supreme Court, the actual appointment of the justices belongs to the President with the advice and consent of the Senate. Here is the relevant paragraph from Section 2 of Article II of the constitution.
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
So the president may appoint the Justices only if the Senate concurs. While this seems like a reasonable check and balance measure, it can also lead to some ugly incidents of partisanship. Recently we have had more examples of this as our political hacks become more and more polarized. This is what all of the big roar is about concerning O'Connor's replacement. We can hope the nomination of Roberts will mitigate some of that vitriol.
For sure, good sense does not usually prevail in our Senate. For example the recent attack on Thomas by the Kennedy faction surely went beyond the pale. Some folks will recall when they conned this foolish woman, Anita Hill, into thinking she could waltz in and trash Thomas, the waltz out without getting dirty. She quickly found out she was in a game that operated well over her head, but the damage was already done. She was dirty and Thomas was damaged, though not destroyed.
Over time, there have been a number of attempts to muck with
the high court by political hacks of every color. I'll get to
some of those in future essays. The wonderful thing is how often
these miserable attempts fail in purpose because of the character
of the justices in general. The best example of that we have recently
is O'Connor herself. She was expected to be a tody of the arch
conservatives. Instead, she turned out to be a rational reasoning
adult. This transformation can happen often when a person finds
themselves in a position where they cannot be coerced by two bit
politicians. I think that speaks well of the inherent human nature.
Back to Gaffer's Variety.
|
|
|
|