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  • Philip Drucker

Communique "McMockTrial" 2-24-2021


There has been quite a bit of chatty, if not catty, chatter lately about the US Supreme Court and its role in our democracy going forward. It’s not hard to see why. One of the pillars of America is, or at least used to be our pride in at least what we thought was our independent federal judiciary system.


Today, what with the antics of the Mitch McTraitorGaterBaits of the world appointing hyper-partisan, the litmus test being a combination of overtly flaunting the separation of church and state, often imposing the religious views of others who do not share the same beliefs or sentiments, the likelihood of voting against abortion rights and by all accounts a basic and entirely troubling unfitness for the judiciary in any capacity to the Article III federal court system.


Why this sudden concern for the integrity and trustworthiness of the federal courts has finally come to the surface is understandable. A bit late perhaps, but the sooner we come to grips with the ever-lowering bar of partisan incompetence as adequate, if not virtually necessary, grounds for appointments to the federal courts and now the US Supreme Court, the better off we will all be.


Beginning with the doddering racist and religious bigot Ronnie Reagan and his public overturn Roe v. Wade or else “litmus test” for Supreme Court justices, the politicization of the SCOTUS for purely biased, prejudiced, one-sided and discriminatory, take your pick, resulting in at least what we thought at the time were absurd nominations, I’m thinking Robert Bork here, little did we know it would only get worse from there.


Remember, we can thank Ronald I only like the Constitution when it allows me to sell arms to insurgents even though Congress expressly told me not to Reagan for his “stellar” appointments of Justice Scalia, a terrible human being for starts, and no, RBG, I don’t care how entertaining he was on your two families together vacations, to Justice Thomas who continues to plague with decisions, or thankfully dissents, that quite frankly would lead one to believe Thomas believes that enforcing the constitution, again at least the parts he doesn’t like, is unconstitutional.


When discussing Scalia, Thomas and their ilk, we must never forget these are two of the worst examples of bigoted and self-interested faux intellectual, originalist gobbledygook spewing, cherry picking history fanatics who routinely compared and/or signed onto opinions comparing members of the LGBTQ community to bigamists, murderers and practitioners of bestiality (look it up for yourself) to name a few chestnuts of right wing we have always reviled these people so why can’t we just keep doing it examples of what we would call today cancel culture, mixed with a heavy dose of deep state who lets them in the door to equality in the first place madness.


Today, things have only gotten if you can believe it, worse. Starting with Alito, who is a complete moron, to Gorpsuch, who is at best marginally qualified but not ready to serve on the highest court in the land, to the absolute debacle that is Brett I lied to Congress under oath, where’s my brewski and never mind who paid off my mortgage, Kavanaugh to the just when you thought the bar couldn’t get any lower Amy Coney Barrett, completely insincere, lacking in experience, intellectually disingenuous and dishonest, can’t even name all of the parts of the First Amendment because she doesn’t care about any of them except her religious freedom to become the equivalent of a surrogate sow in heat for whatever male happens to be in her face (yes I went there) at any given moment and so she can honor Christ by taking away a woman’s right to choose, a matter that I might remind, Jesus never spoke of and certainly did in no way demonize or condemn.


Of course, if you are an Evangelical or some schizophrenic offshoot thereof including most definitely the residents of K Street and the members of the Federalist Society, yours is a son of God who is rich, white, owns a tank or two and generally, lived, looked and said whatever he needed to say that furthers your agenda of animus, rage and greed at any given time it is handy to do so.


For my money, that puts us at four justices who at best undermine the very underpinnings of our trust in our Judiciary to honor the sacred oath they took to uphold the Constitution, probably because God, or at least the lady who owns Hobby Lobby said so and/or should have never been appointed in the first place.


As surreal as it may seem at times, the lack of accountability and conscience in favor of ruthless, misplaced power passing for “qualification” has risen to dilemma level as it now threatens to destabilize our three equal branches system of checks and balances, with the Judicial becoming little more than a proxy for whoever pays the highest price, with the price to play rising in accordance with the amount of shameless acknowledgment to nothing more than crackpot conspiracy theories reach their ever growing swampier and toxic fever pitch.


What would it take to get you to give up your honor, integrity and fidelity to the Constitution? Some vague promise of eternal life? A new home or car? Big bucks parked in an unmarked offshore bank account? A beer? At this point, who knows. All I can tell you is big changes and reform must be made to the Supreme Court before all confidence in the institution is lost.


However, all is not lost and what We, the People need to initially insist upon is a return to Constitutional standards as the Founders saw the separation of and balance of power.


For when it comes to the Judicial branch, we have been lied to for years and all it takes is a little research into the subordinate nature of both the executive and judicial wings to the big dog on the block, that’s right Congress, or the legislative branch that makes the laws in a land dedicated to the rule of law, and not individuals who are afraid of spending all eternity in hellfire because they couldn’t see the grace or glory of spirit in allowing a woman to decide what to do, or not do with her own body.


Have you ever wondered why the Original Framers laid out the first three articles of the Constitution in that order? The answer is both shocking and obvious and is the basis of the lie we have all been led to believe since the day the Constitution was ratified. Simply put, the Founders never intended for all three branches of the federal government to be equal. This is a myth and yes, I do think it is funny and I’m tired of pretending it is not.


In a nation of laws, it only makes sense that the strongest branch, hence the Article I legislative branch would be the strongest. That is why the member of the House of Representatives must run for office every two years? It is no mistake it is in the House where all laws legitimately originate for this is the group most beholden, or perhaps closest to the will of the people.


The current “greatest deliberative body in the world” sanctimony of the Senate is misplaced. America was never intended to have a House of Lords and to argue otherwise is to ignore the early history of our nation. Senators were originally appointed by the State legislature and not by popular vote, as the representatives of the State, in matters related to each individual state, and our duality of sovereign design.


Next, the Article II executive branch was clearly intended to be a slightly weaker arm of the body politic. It is axiomatic the Founders were intent on forming a government that would be most likely to at least delay if nothing else, the rise of a tyrant. Common sense tells you the person who looks, acts, walks, or at least waddles, and talks most like a tyrant? Why that would be a singular president, wouldn’t it?


That is why presidents do not make law. They enforce the laws that Congress makes. I would also take this chance to explain one of the most overlooked aspects of Constitutional interpretation virtually un-discussed, but highly relevant aspects of the impeachment process.


Namely, Congress can remove a president, but the president cannot remove any members of Congress. Only Congress can remove one of their own through the expulsion process. Co-incidence? I think not. Similarly, note that Congress can also impeach justices and judges for “bad behavior” while in office, but again, the Constitution does not include any ability for the Judiciary to remove a sitting member of Congress through the impeachment process, essentially a political process, and thereby, putting out of reach and constitutional bounds for Branch III of III. Get it?


Further, the Colonists having been subject to the kangaroo courts of George III did not trust the judiciary. Ever look at all the criminal law related restrictions in the Fifth Amendment? They were not put into the Constitution by accident. Take the Double Jeopardy Clause. For the average colonist, there was no such protection and as a practical matter, the Crown could repeatedly prosecute an individual as many times as necessary to secure a conviction.


Speedy Trial? Laughable. You got your trial, if at all, after the Monarchy decided you had rotted in jail for a “sufficient” amount of time, often forcing the incarcerated but not yet found guilty to lose all their belongings in the outside world and probably catch a deadly disease to boot. In short, your run of the mill colonist could only in the rarest of instances, guilty or not, of defeating the awesome power, punishment and vengeance of the rigged from the word go colonial court system.


It is also noteworthy to remind ourselves the original Supreme Court did not have the right to judicial review of those laws promulgated by Congress. The right to do so came later, in 1803 when the Supreme Court decided for itself, yes, that’s right the Court itself decided it had the power to do so.


Now, keeping in mind the Founders were alive and witnessed the decision with apparently little complaint to the Head Justice John Marshall, but still, if we believe that original intent does count for something other than going back to the 1600s to find a constitutional basis for clearly unconstitutional practices (did you think we wouldn’t notice ACB? Yeah, you’re going to be leaving soon) well, there you have it. Not there. My take? It’s still not there and never should have been. Is it too late? Of course not. Hint, hint. Wink of the eye, say no more?


Be prepared for there will be a great deal of talk about the best way to reform the Court. Change the number of justices? Stack the Court? Term limits with no more undemocratic life appointments? There are several interesting and enticing possibilities particularly considering it will be Congress, and not the courts that makes its own rules going forward.


Oh yes, did I mention that too? That it is Article I that tells Article III how it will operate? In what numbers and importantly, its jurisdictional limits? Watch for this as possibly the best way to curb and curtail the Court’s power is to limit the cases it can and cannot hear. That’s a jurisdiction issue, plain and simple and yes, set almost entirely by Congress.


As I’m pondering the fate of the SCOTUS, I find myself re-writing the words to one of my favorite songs. Imagine there’s no Supreme Court, it’s easy if you try. All you need is love. Stop the war. Peace out John, wherever you are.


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