“The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” Marbury v Madison
I came across the above quote while further reflecting on the U.S. Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization. During this reflection, I reminded myself that court opinions are pieces of strategic communications first and foremost. Court or case law reconciles philosophy, government narrative, politics, and policy in order to clarify what the law is.
During days of monarchy, it was clearer as to what the law was. It was the king’s edict. The court was the king’s bench. From the bench, the king announced the law, clarifying it and applying it when settling controversies. His designees, scribes, and later “lawyers” would be tasked with spreading his rulings through the land wherever controversies arose.
I am not calling for a return to those simpler times, but I believe that using that simple framework from antiquity could be used for reforming the court.
When the opinion in Dobbs was issued, the arguments about reforming the court came to surface again. The most poignant argument from the Left has been that the number of justices on the court needs to be expanded so that the diversity of current society and its values are better represented. By extension, the Left appears to be saying that a court of say 15 justices, more racially and gender-identity diverse, would come to rulings more in line with the sentiments of society.
The data provides the Left some support in that regard. As I determined in a previous post, approximately 60% of Americans believe that abortion should be legal, yet the majority in Dobbs noted in its analysis that historically, most states have treated abortion as a crime and given that the right to an abortion is not expressed in the Constitution, history, along with text and precedence, should be a factor when determining if the right exists at all.
But are courts representatives of the people? Are they a representative body and should they be? The majority in Dobbs seems to drive home the point that the court is not a representative body. It is a creature of a republic but not a democratic body. The court reiterated that the public should have these debates and have the debates decided legislatively via the state representatives they, the people, elected.
I could see rebuttal from the Left where Marbury is cited as license for the high court to decide on the abortion rights of the individual woman. The court, at least a court preferring a strict reading of the Constitution, will say, “Sure, we agree that we decide on individual rights, but only on those rights the people and their government explicitly say exists and abortion is not one of them.”
The court did a full-court libertarian press with this opinion, taking itself out of the decision as to what a woman can do with her body. That is the irony; that pro-choice advocates would want the government involved in the decision at all. I don’t believe these advocates asked themselves if the benefit of having a uniform abortion law that saves them on the costs of forum shopping is worth the cost of their individual liberties and the slippery slope that raises these costs.
But back to the issue of reforming the court. Reformation should start with ensuring that the court is politically aligned with the administration. Each member should be nominated or re-nominated by the elected president. The justices’ terms would be attached to the term in office of the President. It would be understood that decisions on individual rights, the interpretation of the Constitution, the clarification of the law would be done within the philosophy, narrative, politics, and polices of the Administration. This approach raises the importance of voting, especially since a president relies on a supportive Senate majority to get her nominees through confirmation.
Is Congressional legislative intent left out in the cold? No, because the policies of an administration are based on the president’s duty to execute the law, so any interpretation of the law by the court takes Congress’ intent into account.
A real government speaks with one voice. A re-alignment ensures clarity and reduces uncertainty.
The electorate has been passing the buck for too long. If Americans endorse the notion of government, it has to endorse an electoral process that aligns all spinners of political narrative into one box. Society is too split, its government’s policies too disjointed for this reason.
30 June 2022
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