Supreme Court Reform – A More Effective Strategy
June 24, 2022
The US Supreme Court overturned the 1973 landmark Roe v. Wade decision today, setting women’s rights back two generations. This violation of constitutional rights could disrupt society and spur another women’s liberation movement. It also will greatly increase calls for Judicial Branch reform.
In addition to taking away women’s right to control their bodies, the court has weakened voting rights, environmental protection and campaign finance laws. This enabled vested interests to control government, concentrate wealth and cause millions of US citizens to suffer unnecessarily. Reforming the Supreme Court is essential for promoting the general welfare, the most important goal stated in the US Constitution.
Current reform proposals often call for adding justices to the Supreme Court. But there is a simpler and more effective strategy – imposing term limits and restricting judicial review. The current structure of the Supreme Court grossly violates the US Constitution and Founders’ intentions. This article describes how to rectify this injustice, protect society and abide by the Constitution.
Under current constitutional interpretations, the Supreme Court can unilaterally and irrevocably void acts of the Legislative and Executive Branches. This makes the Judicial Branch the strongest branch of government. In addition, Supreme Court Justices are unelected, lifetime appointed and largely unaccountable to the people. They are aristocrats. When a lifetime appointed, aristocratic, unaccountable branch of government has absolute authority over the two elected branches, democracy and republican government largely do not exist.
The US Founders rebelled against the aristocratic British government. They absolutely did not intend to establish aristocracy in the US. The current structure and authority of the Judicial Branch are heavily influenced by the Federalist Papers related to the Judiciary (Nos. 78 to 83), which were written by Alexander Hamilton. He admired the British form of government. During the Constitutional Convention of 1787, Hamilton proposed that the President, Senators and judges serve for life once elected or appointed. He also proposed that Congress appoint state governors and have veto power over state legislation. His proposals largely were ignored during the Constitutional Convention because they established aristocracy and took too much power from the states. James Madison referred to Alexander Hamilton as a monarchist.
Hamilton failed to achieve the aristocracy he advocated during the Constitutional Convention. But he ultimately won. In the Federalist Papers, he supported lifetime judicial appointments and said the Supreme Court should be empowered to interpret the Constitution and void laws that violate it, a power known as judicial review. But Hamilton acknowledged that the Constitution does not give the Judicial Branch the authority to void laws. He also pointed out that it gives Congress substantial authority to structure and regulate the Judiciary and there is nothing in the Constitution that prevents Congress from reversing judicial decisions.
In an 1803 case, Marbury v. Madison, the Supreme Court unilaterally gave itself the power to irrevocably void executive and legislative acts. As President Lincoln said, this essentially ended republican government (i.e. citizens controlling government through elected representatives). The Constitution gives all ultimate authority to We the People. The Founders made Congress the most powerful branch of government because it is regularly elected, and therefore closest to the people.
James Madison, Thomas Jefferson, James Wilson and other Founders made clear that the Judicial Branch was intended to be the weakest branch of government because it is unelected, and therefore farthest from the people. Articles I and III give Congress the power to structure and implicitly regulate the Judiciary. Article III, Section 2 gives Congress explicit, unlimited authority to restrict and regulate the Supreme Court on appellate cases (i.e. nearly all Supreme Court cases). The Founders did not intend that a small group of unelected judges would have absolute authority over all citizens and the people’s elected representatives.
They also did not intend that justices would be aristocrats who serve for life. Voluntary rotation in office was common practice in the early US. George Washington did not seek a third term as President. The first ten Supreme Court justices voluntarily left office after an average of eight years. This was consistent with the structure of the US government (i.e. two years for Representatives, four years for the President, six years for Senators, eight years for Justices). The Constitution says that judges “shall hold their Offices during good Behaviour”. Some delegates to the Constitutional Convention believed that during good behavior referred only to a standard for removal from office, not lifetime appointments.
The Founders provided substantial details about the structure of the Legislative and Executive branches in Articles I and II. But they provided far fewer details about the structure of the Judicial Branch in Article III. Instead they empowered Congress to structure and largely regulate it. If an important aspect of the Judiciary is not established in the Constitution, Congress has the power to establish it. Judicial terms of office are not explicitly defined in the Constitution, as they are for the Legislative and Executive branches. The Constitution does not say that judges shall hold office for life or until they voluntarily retire. Holding office during good behavior could be interpreted to simply mean that maintaining good behavior is a requirement for remaining in office. Congress has the authority to define and implement judicial term limits because specific terms were not defined in the Constitution.
The Constitution also does not establish an adequate mechanism for holding justices accountable. It holds the President, Senators and Representatives accountable through elections. But judges are unelected. In the Federalist Papers, Alexander Hamilton argued that judges are adequately held accountable through the impeachment process described in Articles I and II. But as Thomas Jefferson said, this is incorrect. Article II says that civil officers of the United States only can be impeached for treason, bribery and other high crimes and misdemeanors. Under current constitutional interpretations, it would be nearly impossible to remove justices for gross judicial errors, incompetence or violating the Constitution, in part because the Supreme Court gave itself the authority to interpret the Constitution. In addition, the impeachment process establishes a high standard for removal from office. A two-thirds vote is required in the Senate. This would be very difficult to achieve in today’s highly partisan environment.
The Founders obviously did not intend that judges who make gross judicial errors, become incompetent or violate the Constitution would remain in office. The Constitution establishes no mechanism for removing judges for these and other valid reasons. Therefore, Congress can establish a process, for example, by defining good behavior and implementing mechanisms for removing judges who violate the standard. Removing judges in a partisan environment could be difficult. Imposing term limits greatly reduces this problem.
Vested interests often argue that establishing judicial independence was a goal of the Founders. But this is misleading. Judicial independence was a tool, not a goal. The primary goals of the Founders were promoting the general welfare and establishing republican government. These goals take priority over everything else, including judicial independence. Full judicial independence equals no accountability to the people, the legitimate rulers of society. Judicial accountability takes priority over judicial independence because there is no republican government without accountability to the people.
Vested interests also frequently argue that there must be a mechanism for ensuring that laws do not violate the Constitution. This also is highly misleading. It implies that the Judiciary must prevent violations. But the Constitution does not establish this. Instead, it establishes at least four mechanisms to ensure compliance – Presidential veto, the two-house structure of Congress, regular elections, and the oath of allegiance to the Constitution. Congress could give judges some compliance role, for example, by establishing the council of revision proposed by James Madison during the Constitutional Convention. But final judicial authority must not rest with a branch that is not controlled by the people. This weakens or ends republican government.
In addition, the need to ensure that laws do not violate the Constitution is smaller than vested interests frequently allege. Article I, Section 8 gives Congress the authority to pass any law that it believes is necessary to promote the general welfare, provided that these laws do not violate the few explicit or implicit prohibitions in the Constitution, such as passing ex post facto laws or violating the Bill of Rights. Article VI places these laws on an equal footing with the Constitution. The Constitution empowers Congress to define the general welfare and pass nearly any law necessary to promote it. The President can veto these laws. But the Judiciary is given no general authority to insert itself into the lawmaking process. It cannot place its opinions about promoting the general welfare above those of Congress. The people’s elected representatives are authorized to define the general welfare, not the unelected Judiciary.
For example, if Congress decides that providing healthcare to all citizens through government programs (as every other developed country does) is a necessary component of promoting the general welfare, the Judiciary has no constitutional authority to render an opinion in this area. As Thomas Jefferson said, the Supreme Court only has authority to decide how laws apply in specific legal cases. Even this authority can be restricted via Article III.
Vested interests often argue that the Founders intended lifetime judicial appointments because this protects the judiciary from political influence. But they have the opposite effect. By giving money to politicians and influencing government in other ways, wealthy citizens and corporations can compel the appointment of judges who are highly biased towards protecting these groups.
Lifetime appointments facilitate the worst form of political influence – influence that cannot be corrected. Once vested interest-biased judges are appointed, they generally cannot be removed, according to current constitutional interpretations. This locks political influence into government and effectively gives vested interests long-term control of the most powerful branch of government. Through Citizens United, McCutcheon and other decisions, biased justices served the wealthy citizens and corporations who effectively paid to appoint them by giving these groups even stronger control of government.
Hamilton argued that lifetime appointments would better enable the Supreme Court to uphold the Constitution. But this is not logical. No other country appoints supreme court justices for life. Lifetime appointments with limited ability to remove judges greatly reduces consequences. It makes them vulnerable to hubris, partisanship and corruption, and thereby increases the likelihood that they will violate the Constitution. If justices know that their decisions could be reviewed in a few years by the judges who replace them, they will be more likely, not less, to abide by the Constitution.
Some people argue that Congress exercising its constitutional authority to rein in the Judicial Branch is problematic because the Legislature also is corrupted by money and influence from wealthy people and corporations. But citizens have the power to correct this corruption through elections. However, they cannot correct corruption, vested interest bias or political influence in an unelected, lifetime appointed judiciary. Therefore, as long as lifetime judicial appointments are in place, maintaining republican government requires that final authority to interpret laws and the Constitution remain with Congress.
Congress tried many times in the 1800s and early 1900s to impose judicial term limits and restrict the power of judicial review. These efforts largely were unsuccessful. However, the fact that they occurred illustrates that Congress has the constitutional authority to take these actions, if it develops the will to do so.
Reforming the Judicial Branch by imposing term limits and restricting judicial review is essential for establishing democracy and the republican government that our Founders clearly intended. Ending aristocracy in the Judicial Branch is perhaps the most important change needed in the US government. It also is one of the easiest to implement. No constitutional amendments are needed. Congress can impose term limits and revoke judicial review through simple legislation. It also can reverse federal judicial decisions, such as Citizens United.
The Supreme Court had no constitutional authority to unilaterally grant itself the power to irrevocably void legislative and executive acts in 1803. However, Congress does have explicit, strong constitutional authority to structure and regulate the Judiciary. Congress can do what the Supreme Court unconstitutionally did in 1803. It can use its constitutional power to unilaterally impose judicial term limits and restrict judicial review. The President could veto this legislation. But the Judicial Branch would have no recourse.
When Congress does not exercise its authority over the Judicial Branch, it mainly is not being magnanimous, respecting tradition or deferring to legal experts. It is giving away the people’s constitutional power to control government, and by doing so effectively ending republican government. The Constitution makes the people’s elected representatives the highest authority in government, not unelected judges.
Imposing term limits and restricting judicial review would greatly reduce the tumultuous and disruptive nature of Supreme Court appointments. Each appointment would be less significant because term limits would drive rotation in the federal courts and thereby significantly increase the number of appointments. Restricting judicial review would ensure that judicial servants of the people are appointed, as required by the Constitution, instead of judicial masters. Increasing rotation and removing the monarchical power of Supreme Court justices would align the Court with the Constitution and substantially reduce the significance of each appointment.
Vested interests might attempt to mislead citizens into thinking that these congressional actions would be a constitutional crisis. But the constitutional crisis occurred in 1803 when the Supreme Court effectively ended republican government in the US. Imposing judicial term limits and restricting judicial review is rectifying a constitutional crisis that has been allowed to linger for far too long.
Having an unelected Judiciary did not violate republican government because the Founders gave Congress clear authority to control the Judicial branch. As long as the people’s elected representatives controlled the Judiciary, our government was republican. But Congress has not adequately exercised its authority over the Judicial Branch. Instead, it has allowed the Supreme Court to unconstitutionally assume the role of supreme rulers in the US. But the Founders made We the People the supreme rulers, not unelected judges. Our country should not be controlled by a small group of aristocratic judges. We the People have all ultimate power. It is time to claim it.
Frank Dixon is a sustainability and system change visionary, pioneer, innovator and leader. He saw 20 years ago that system change was the most important sustainability issue. As a result, he established Global System Change and developed the System Change Investing (SCI) approach. It provided the first model for rating companies on system change performance and integrating system change into corporate sustainability strategies. He also developed a true whole system approach to sustainability, described in the Global System Change books. It provides systemic solutions for all major areas of society. In the financial and corporate sectors, SCI offers the most advanced and effective sustainability strategies. Before writing the GSC books, Frank Dixon was the Managing Director of Research for the largest corporate sustainability research firm in the world (Innovest/MSCI). He developed ESG rating models and research processes that consistently provided superior investment returns. He advises companies, investors and governments, including Walmart and the US Environmental Protection Agency, on sustainability and system change. He has presented at many corporate and financial sector conferences around the world, and spoken at leading universities, including Harvard, Yale, Stanford, MIT and Cambridge.
Frank Dixon has an MBA from the Harvard Business School.
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