The Supreme Court and the federal court system, which in the beginning was the weakest branch of government, could now be considered the strongest branch. The federal courts have, indeed, usurped power from the states and consolidated most, if not all government power in Washington. Indeed, the judicial pendulum has swung far to the left, as is amply pointed out in Mark Levin's book, Men in Black: How the Supreme Court is destroying America. However, that pendulum is poised to take what might be a final swing to, who knows where?
When President Eisenhower appointed former governor of California, Earl Warren as Chief Justice of the United States, he assumed Warren would follow a conservative line in his decisions. Eisenhower assumed wrong, much to his regret. Not only did Chief Justice Warren turn liberal, he was a persuasive man who rallied the Supreme Court justices to revolutionize criminal and social law.
Since the Warren Court era, presidents Nixon, Reagan and Bush turned the tide of the Supreme Court from solidly liberal, to generally conservative, with the appointments of conservative Chief Justice Rehnquist and associate justices Scalia and Thomas, and conservatives (turned moderate), justices O'Conner, Kennedy and Souter.
Now that D.C Circuit Judge John G. Roberts Jr.-- a relatively unknown but persuasive figure -- has been sworn-in to replace recently deceased Chief Justice Rehnquist, swing-vote Justice O'Conner's conservative replacement is sure to follow. Which is why liberal Senate Democrats, a minority in the Senate, are likely to stage a highly partisan block against President Bush's appointment of his longtime friend and personal lawyer, White House Counsel, Harriet Mier by using -- Republicans say abusing -- the filibuster rule to prevent a simple majority Republican vote from confirming her.
According to Senate rules, it takes a 60-vote super majority to end filibusters. Senate Republicans want to change the rule, which they can do with a simple majority, to allow up or down votes on judicial confirmations. If they try to eliminate the filibuster rule, Senate Democrats will have a political fit, accusing Republicans of using the "nuclear option."
Court critics from both ends of the political spectrum are raising the stakes because Democrats want activist courts to continue legislating from the bench to accomplish what they cannot get from a Republican controlled Congress. Whereas, Republicans want strict interpretation of the Constitution to prevent liberal judicial activism and ensure a conservative majority on the Supreme Court. Few would question the fact that bitter battles will surely ensue.
Clearly, our government is steeped in turmoil over the growing struggle for power. The Supreme Court and federal courts have tilted the balance of power. Congress is in a state of flux. And many people worry that the presidency is becoming too powerful, even monarchial. Ideological conflicts such as abortion, religious rights, personal freedoms and economic abuses are making Congress and the presidency do strange things. Still, the outcome is usually left for activist courts to decide.
Meanwhile, the vitriolic politics of the two-party system can't seem to cool below the boiling point, as it continues to control elections and government, to exclusion of third party hopes, which is becoming detrimental to our democratic republic and our way of life. What are citizens to do? One idea would be to make all elections and government nonpartisan. After all, the Democrat and Republican parties have no constitutional right to control the system. It just worked out that way. Of course, the Supreme Court won't hear of it -- yet. I know, because I've petitioned the Court three times.
What is even more disturbing is the possibility, remote as it may seem, that the Supreme Court could become all powerful by saving the country from the tumult of the out-of-control two-party system, an inept, overreaching Congress, and a power-hungry presidency. They could do it by simply romancing the people with a series of widely popular decisions that would shift confidence and the human need for security to the Court.
Of course, a court system controlled by the extreme left could create an authoritarian socialist state. Likewise, courts controlled by the extreme right could create a judicial dictatorship. Either way, it would be the undoing of democracy and America. Rubbish, you say? To the contrary, as far-fetched as one might imagine, it could actually happen.
The federal judiciary must loathe the ugliness that has reared it's head during Senate confirmation battles. Appointed for life, Supreme Court justices and federal judges have undoubtedly mused over thoughts of having absolute power over pointless politicians, the frustrated military, the arrogant media, the corporate elite, and the ignorant, unsophisticated masses. After all, the lawyer industry and the courts have increasingly been used to resolve the disputes of so many self-absorbed people, cultures and ideologies (who can't seem to get along for any reason) for so long, the judiciary has assumed the oracle of the high and mighty. A majority of Supreme Court justices selected a president, didn't they? At the other end of the spectrum, they have agreed to hear the ludicrous bimbo inheritance case. And they could certainly end up deciding the case of recently indicted Republican Majority Leader, Tom Delay.
As if we don't have enough stress and anxiety in our lives, our society is awash with fear and insecurity because of terrorism here and around the world, currently centered in the conflict in Iraq. People are frustrated with the Congress and concerned about the presidency becoming too powerful. But having the Supreme Court as our parents and guardians? Nah! Never happen! On second thought, what if Chief Justice Roberts, with the help of a tireless, conservative justice Mier (who was instrumental in his appointment), turns out to be a powerful and charismatic chief who is even better at influencing the Court than Earl Warren was?
...Consider this frightening, Orwellian scenario: After the most liberal justices on the Court are replaced by one or more conservatives (Stevens, because he is the oldest, and/or Ginsberg, whose health is questionable), the bad guys turn themselves into the good guys. Black robes on white horses, national heroes rescuing the people from a superficial, decaying and volatile society of bad government, social aggression, selfish interests and extremes. Given time, they could certainly do it. In concert with a newly conservative, aggressive legal community they could re-indoctrinate law schools.
Then they could manipulate decisions that would control and coalesce the media into the censorship, propaganda and good news arm of the Court. Next, they could depublish all previous Supreme Court decisons, which would do away with precedent, following prior decisions of the court (stare decisis). The abortion issue and other hotly debated issues would then be left to the states.
The Court could gain control of the Internet by preventing the United Nation's move to take control from the U.S. The decision could be based on the origin of the Internet, which was our Defense Department's Arpanet. They could enlist the self-importance of military command and control by playing on their equal contempt for Congress and the presidency. They could easily re-direct greed and power by consolidating corporations under the table. And move to co-opt the Congress and the presidency into puppets of the Court.
The Court could polish off the legal coup by deciding cases wildly popular with the people, with such things as finding income tax and the IRS unconstitutional, limiting taxes to a ten percent tithing, bringing all the military home and reducing its size, closing our borders, nationalizing healthcare with social security, and nationalizing police to crush crime, gangs and terrorism, including social and political activism... And they could write a new constitution in the process, creating a society governed by "tribunalism," with federal courts governing the United States, state courts governing the states, and local councils of lawyers governing cities and counties.
Impossible? Consider what is really going on in each of the areas described above, how the courts are involved, and how vulnerable we are... then think about it again... IT, or something like it but less extreme, could happen...
Men in Black author, Mark Levin aptly put forward a solution to the Supreme Court "abusing and subverting its constitutional role." He proposed a constitutional amendment limiting Supreme Court justices and federal judges to fixed terms, and another "constitutional amendment limiting the Supreme Court's judicial review power by establishing a legislative veto over Court decisions -- perhaps a two-thirds vote of both houses," similar to a "congressional override of a presidential veto."
However, the common sense solution would be to control government with a jury of the people and a lot more democracy. This is still America and our freedom is not lost. We can either continue to let it slip away, or we can help ourselves with a constitutional amendment establishing a form of direct democracy, with secure voting networks connected to voters' homes, wherein all elections and government would be nonpartisan, with elected professional government managers instead of professional politicians. Truthfully informed voters would be able to communicate with each other and their elected representatives to decide matters of taxation and public policy. Each of us is in the position to decide what is best for us as individuals. And with fully informed direct democracy on our side, we could certainly trust the collective judgment of our fellow citizens to decide what is best for all of us. It's certainly worth a try, before it's too late...
Indeed, as Thomas Jefferson said, "I know of no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it away from them, but to inform their discretion."
Daniel B. Jeffs, founder
The Direct Democracy Center