Monday, September 05, 2005

An Independent Supreme Court

The Supreme Court was established by the Constitution in 1789: 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 Constitution did not specify what were to be the Supreme Court’s duties and powers, and the early Court was weak because its role had not been defined. The Court began a metamorphosis in 1801 when John Marshall became chief justice. In 1803 the Court issued its decision in the landmark case Marbury v Madison, which established the Court’s power to interpret the Constitution and to determine the constitutionality of laws passed by Congress and state legislatures.

The Constitution also did not specify how many justices were to serve on the Supreme Court. The Judiciary Act of 1789 established that the Court would be composed of six justices, i.e. one chief justice and five associate justices. Congress retains the power to mandate the number of justices on the Court.

The Court had six justices from 1790 until 1807, when the number was increased to seven. The number became nine in 1837 and ten in 1863. In 1866, the Radical Republicans passed the Judicial Circuits Act, which set the number of justices at seven. The decrease in the number of justices was to occur through not replacing retiring justices, and the Act was passed specifically to prevent President Andrew Johnson, a Democrat, from making any appointments to the Court. The number of justices was again set at nine in 1869. FDR later attempted to expand the Court for his own political ends, but failed.

With the recent death of Chief Justice William Rehnquist, there are currently 8 justices sitting on the Court. Justice Sandra Day O’Connor, although retired, remains on the Court until her replacement is confirmed.

Six of the eight justices were appointed by Republican presidents; only two of them by a Democrat. President Bush has already nominated one very conservative justice for the Court. Judge John Roberts will be confirmed by the Senate because he has an impeccable record as a jurist. I expect that Bush will make another clever appointment, i.e. conservative but confirmable.

I do not mind whom Bush appoints in terms of how “conservative” or “liberal” they are. The key factor for the Supreme Court in maintaining proper checks and balances in government is political independence. Aside from the Florida election decision in 2000, Supreme Court justices have a very strong tradition of maintaining independence, even with respect to the presidents who have appointed them. Famous examples are Justices Oliver Wendell Holmes and Earl Warren.

Then, of course, the new justices must also be absolutely committed to upholding the Constitution, but that is, after all, their job.

3 comments:

Anonymous A-Hole said...

"Aside from the Florida election decision in 2000, Supreme Court justices have a very strong tradition of maintaining independence, even with respect to the presidents who have appointed them."

Maybe the 2000 election wasn't what people made it out to be. One of the things that confirmed my suspicions of this was the Court's decision.

It's more likely that the issue was warped by those that didn't like the outcome than it was that the reliable Supreme Court made a politically charged and enigmatic decision.

At least that's the way I see it.

Max said...

Asshole, if "the 2000 election wasn't what people made it out to be," then what do you think it was?

And is that really you being a total asshole over on Beamis' blog? If so, why are you posting anonymously? If it is not you, everyone is assuming it's you anyway.

Max said...

Asshole e-mailed me some comments.

Asshole

My take is that the Democrats took Florida for granted and then were absoutely shocked that 1) they lost there and 2) it turned out to be the pivotal state. Quite simply, the Democrats' strategy in 2000 was just bad enough to cost them the election. Rather than accept that the Repubs had (behind the hated Rove) simply out-strategized the Dems, those Dems decided (in a debate that did much to divide the party), to go forward with an ill-advised legal appeal (not the recount, the lawsuit).

Internally, the Democratic party has been schizophrenic ever since (with the subsequent shift to the left then costing them the next election).

In my view, the last two elections have been lost by the Democrats as much as won by the Republicans.

The fact that Florida went handily to Bush the next time around (without a hint of controversy) also suggests that Bush really did win it the first time around (obviously by slim margins).


Max

I absolutely agree with you that part of the reason the Democrats lost in 2000 was because the Republicans out-strategised them completely. Another factor is their shitty candidates. However, I maintain that the Supreme Court decision to stop the recount was wrong and was made along partisan lines. So we are not really even disagreeing on most things. I still doubt that Bush won Florida legitimately in 2000 as I doubt he won Ohio legitimately in 2004, and who knows where else was rigged by Diebold. However, it's all a moot point by now, at least as far as Bush being president is concerned.