Diary

Responding to the Supreme Court

I’ve had the opportunity to vent my spleen, and on reflection, I have to agree, right now, the answer is no, Texas shouldn’t act to try and nullify the decision of the Supreme Court.  The reasons why have to do with the fact that if Texas acts in this way this time, it does enter into the slippery slope of when the next time will be, and who will have that right, etc.  While states do, in fact, have the right to refuse to enforce federal laws (if you want to read an article on it) they don’t have the right, historically, to nullify federal laws.  This doesn’t mean that Texas, and other states, may never be at this point, but that we aren’t there right now.

We aren’t at the point of needing a constitutional crisis yet, because the Constitution does, in fact, offer other options on how to specifically deal with this situation.  As long as there is a potential legal recourse available to us, we ought to seek that recourse, so that we might show that our desire is to work within the law and accomplish our objectives through means that everyone might agree with.

First off, there is the option of impeaching the SCotUS judges who have blatantly acted to create law instead of restricting themselves to obeying the Constitution.  This has never been done, but it is within Congress’ rights to do.  The Constitution states that justices on the Supreme Court serve “during good behavior.”  If Congress determined that the behavior of the justices was an abrogation of their duty, and thus violated the “good behavior clause” of the Constitution, they would, in fact, have the right to impeach those same justices.  Ultimately, we must remember that impeachment is a political act, and would require a two-thirds vote in the Senate.  This means we have to have a super majority, and we have to have a senate who is willing to act on it.  It goes without saying, this option is highly unlikely.  (In case you’re wondering, other judges have, in fact, been impeached, but never a justice on the Supreme Court, and there are certain issues that might arise from Congress choosing to impeach a judge over interpreting the Constitution, but that doesn’t mean it can’t be done, only that questions will be raised.)

Our second option is that Congress can pass a law stating that the Judiciary does not have the right to review cases such as the one that came before them, and that such a law is not open to judicial review.  Again, we’re getting into the weeds of Constitutional authority, but, under Article III, section 2, the Constitution clearly states that Congress has the right to regulate the appellate authority of the Supreme Court.  Thus, if Congress determines that Federal Courts do not have jurisdiction in such cases, and that this law cannot be reviewed by the courts, then that would mean that the courts would be bound to obey such a law.  Of course, some judge could act to overturn the law saying that other Constitutional concerns make it so that he must, in fact, have appellate authority, however, in such a case, Congress could reiterate their view and nullify the court decision.

It should be noted that this would bring up a situation that has literally never happened before.  Congress has never directly nullified a court decision by saying that the law precluded the court from having appellate or original jurisdiction.  Whereas states have tried to nullify federal laws, and the Supreme Court has ruled they don’t have the authority to do so, I have not been able to find a situation where Congress nullified a Supreme Court decision by simply removing their jurisdiction.  This could raise a Constitutional crisis, but it would seem to me that such a crisis would, in fact, be due to the courts trying to overstep their authority.  Such an action could then result in impeachment by congress, to which justices would have no recourse.

The final option is that Congress could decide to increase the number of justices, thus allowing the President to add multiple new justices so as to shore up the conservative wing of the court.  Of course there is risk in this, in that you never know exactly how a judge will vote in the future, but, if Congress so chose to increase the number of Supreme Court justices to 11 or even 13, then the next President could appoint (immediately) 3 or 5 new justices, thus potentially allowing for a very strong conservative voice on the court to check the actions of Kennedy and the other more liberal justices.  This would be easier to do than impeachment, and would avoid any of the issues of having a law that removed jurisdiction from the court.

In order for any of these options to be realistic though, we need to have the Presidency.  We will not get a law signed that removes the authority of the court to restrict a states rights on regulating abortion without a conservative president.  We certainly won’t get a super majority in the Senate unless we also win the Presidency, and even if we did impeach judges, we run into the same problem as the third option.  Without a conservative President, we won’t get good judges, no matter how many are added to the court.

This is why it is crucial we dump Trump.  Trump loses to Clinton.  Even if Trump beats Clinton, he has already said the list of judges he put out previous is only a “suggestion” and that he isn’t really committed to them.  That means that we’re going to get, at best, a moderate judge out of Trump, and probably a liberal one if we’re at all honest.  Trump won’t spend the political capital that would be required to get a conservative judge appointed.  He’ll cave to the Democrats filibustering his nominee and give a “compromise” candidate as soon as he sees his numbers taking a hit because of the negative press he’ll get otherwise.

The only way we have any options to do anything with the Supreme Court is if we first dump Trump.  Everything else has to come after that, once we have a candidate who can actually win against Hillary and will appoint sound justices.