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  • Writer's picturePhilip Drucker

"Good Behavior" 6-18-2022

Photo Credit: Facebook/Ginni Lamp Thomas

When researching the origins of the federal court system, including the US Supreme Court, it often is quite a surprise to discover we almost didn’t have one. The Founding Fathers were very cautious when it came to giving any power to any entity. They felt despite the forum, all this included the States and what they called the tyranny of the majority.

It is true they saved their highest suspicions for any grant of authority to a federal government, as it was the concept of a President that was the most likely figure with the capability to abuse his plenary position of authority and turn our nascent democratic republic into an autocratic form of oppressive government imposed upon the masses who now were without recourse and at the mercy of an unchecked tyrant.

So worried were the early Americans of the concentration of any endowment of too much power in too few hands that their first attempt in 1781 to draft a written document outlining the functions of a national government, the Articles of Confederation, with as a practical matter, a singular legislative branch without any power to enforce any United States Laws it may pass upon the states.

Similarly, there was no provision for the establishment of a federal court system leaving matters of adjudication to the individual state court system. But this proved problematic going forward as there was no effective way to harmonize or settle disputes among the states.

This resulted in the lack of an efficient way to promote national policy leaving our soon to be independent country without the ability to regulate foreign and interstate commerce, collect taxes to fund itself, raise an army or quell any internal rebellions.

When the Founding Fathers met at the Constitutional Convention of 1787 it ended the era of the Articles of Confederation. As the Founders began the hard work of drafting an operating document acceptable to all of the thirteen states, an almost impossible feat in and of itself, Alexander Hamilton opined in Federalist Papers, No. 22,

“The faith, the reputation, the peace of the whole Union, are thus continually at the mercy of the prejudices, the passions, and the interests of every member of which it is composed. Is it possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent to trust their honor, their happiness, their safety, on so precarious a foundation?”

In his plea for unity, Hamilton is essentially arguing could our potential allies abroad and the citizens at home rely on the efficacy of 13 different states to make joint decisions in predictable orderly fashion for the good of the entire country?

Or, were We, the People ready to take the plunge and create a truly representative form of government with the power and ability to formulate and enforce its laws as binding upon the states? Alexander thought we were and thankfully, he was right. During the Convention, the Founders agreed to split our government into three parts. This would alleviate the problems associated with the aforementioned concentration of unrestrained power resulting in a despotic tyrant willing to sacrifice his country in favor of his personal interests.

The Constitution allowed for the formation of I. A legislative branch, to make the laws, II. An executive branch to enforce the laws, and III. A judicial branch to essentially administrate and facilitate the laws including a Supreme Court.

It is indeed odd to discover our entire Constitutional federal court system took no more than one sentence to define in Article III, section 1:

“The judicial Power of the US shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish.”

The Founding Fathers were apparently chomping at the bit to establish a federal judiciary and the first bill introduced to the Senate became the Judiciary Act of 1789. Pursuant to the Act, the Supreme Court met for the first time on or around February 1, 1790.

The original Court was comprised of one Chief Justice, John Jay, and five Associate Justices, all nominated by George Washington, and confirmed by the Senate. The Court spent its first year essentially organizing itself and identifying what policies and procedures it would use going forward.

At the same time, Congress knew the Framers had created a branch of government with no ability to enforce its own judgments. This left the SCOTUS a paper tiger at best, having to rely on the good intentions of the Congress to build and maintain the reputation and gravitas necessary to fulfill its judicial obligations.

This would require at a minimum the appearance of an independent, competent and corruption free body of jurists who could assist the young nation by administering justice to those who requested it, in a fair, uniform and equitable manner.

This alone was not going to be as easy as it may have sounded at the time. The former colonists were deeply suspicious of any court having been subjected to the kangaroo courts of King George III.

The 5th and 6th Amendments looked good, but…

As part of its efforts to maintain both the doctrine of separation of powers and to protect the Court from outside partisan pressures, the Constitution provided for the justices to serve during “good Behavior” the term generally interpreted as for a life appointment.

Further protective measures included judges salaries could not be diminished during their tenure and as the Constitution specifies impeachment as the proper remedy for matters involving corruption, in an additional effort to shield the “helpless” SCOTUS from outside influences, has no specific ethical codes of conduct leaving it up to the members to internally police themselves when it came to matters of maintaining a sense of independence, decorum and importantly, determining for this small group of public servants internally assessing what is and is not, “Good Behavior”.

The lack of a definitive ethical code in the Supreme Court is not as many of the public may still believe a “get out of jail free card” and an open invitation to perform bad acts without suffering any ill consequences.

It was and is, a measured, logical and practical way of assuring the public that its Supreme Court, the highest court in the land, can and is capable of independently and without any outside interference, political or otherwise, do its job to follow, preserve and protect, We, the People’s Constitutional rights.

For when it comes to the public, the Court without an army of its own, can only function if the public perceives the rulings as legitimate. Or to put it another way it is our perception of legitimacy of the decision, that it was made by following the rule of law within our foundational principles, even if we disagree, that we comply.

If the public starts to sense the erosion of the Court’s moral values, that it has fallen prey to the frailties of the human spirit, and importantly, the Court itself is beyond reproach, the institution as we know it will collapse.

The ensuing chaos alone would be devastating in and of itself leaving us in unknown legal waters and with a true, constitutional crisis on our hands.

On August 3rd, 1791 in the case of West v. Barnes, the Court issued its first opinion. The Court held that "Writs of error to remove causes to this court from inferior courts, can regularly issue only from the clerk's office of the court.”

As a result Congress changed the procedures for “lodging” payment of a debt, as allowed by state law in paper currency, as opposed to payment in silver or gold.

We followed the ruling then, as we have continued to follow the Court’s rulings for over 231 years.

After deciding four cases over the next six years, due to a lack of prestige and the accumulation of saddle sores from “riding the circuit”, John Jay would resign from the Court in 1795 and later become the 2nd Governor of New York.

In 1800, Jay was offered a second term but turned it down allowing John Adams to appoint John Marshall as Chief Justice. Marshall would spend the next 34 years, the longest tenure of any Chief Justice and in the process turn the institution into the model we are familiar with today.

Yet today is not a great day to be an American. Recent events suggest the legitimacy of the Roberts Court may not be enough to support the trust of the people and preserve the status quo we have all benefited from for over 200 years.

It was a sad day when Mitch McConnell blocked Obama’s appointment of the if anything overly qualified Merrick Garland to the Bench.

It was a sad day when Trump won the election.

It was a sad day when when Trump started taking his marching orders from the Federalist Society and nominated right-wing ideologue Neil Gorsuch as his replacement.

It was a sad day when Justice Kennedy “resigned” his position and an even worse jurist, the entirely unqualified for the position Brett “Beer Breath” Kavanaugh was eventually appointed to the Court as his replacement. Good Behavior anyone?

It was an even sadder day ending in a travesty when Ruth Bader Ginsberg unexpectedly died leaving an already out of control Mitch McConnell to appoint the unbelievably unqualified for anything other than a "witch hunt" Amy Coney Barrett as her successor.

It was a great day to be an American when Joe Biden won in 2020.

It was a great day when he appointed Ketanji Brown Jackson to replace the retiring Stephen Breyer to the SCOTUS.

It my not seem like much now, but the “leaking” of the Dobbs draft opinion will prove to be a turning point into what I will call the oncoming reconstruction and redemption era of the Supreme Court.

What happens if and when this “secret” cadre of insurrectionists recklessly decide to issue the Dobbs draft as an actual certified decision of the “Supreme Court”? One shudders to consider the consequences associated with such a foolish, oblivious and cruel act of what will amount to judicial suicide and the “death” of the Roberts Court.

The damage done by the revelations associated with the Ginni/Clarence Thomas scandal are at this moment incalculable. It will be many years before We, the People will believe in the legitimacy of what was once one of our crowning achievements of democracy and the nation, a Supreme Court the people could and did trust.

What if…over and out.

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