How to repair the damage done to the Supreme Court

For years, a primary goal of Republicans has been to reshape the judiciary. They have done so using every tool at their disposal, but one of those tools was not honesty. Not even considering President Obama’s nominee Merrick Garland on the basis that such nominations aren’t entertained during a presidential election year, and then ignoring that logic to confirm Amy Coney Barrett as a justice was a demonstration of both hypocrisy and Might Makes Right. With Republicans having precipitated this crisis; should the Democrats take control of the presidency, the House, and the Senate; as it appears they will; they would be perfectly justified in making use of that might to correct such an abuse.

What could they do? At a bare minimum, since Merrick Garland isn’t on the court and Neil Gorsuch is, the Congress could pass a law, increasing the size of the court to eleven. President Biden could then appoint two more people to re-establish a balance.

Others have argued for even more radical changes, including among others term limits and selection criteria by party; all of which are likely to be constitutionally problematic. Whatever power the Democrats will have next year, they will almost certainly not have the power to enact amendments. Indeed even to go so far as to increase the size of the court they will almost assuredly have to do away with the filibuster rule in the Senate.

Stepping Away From the Brink

If the Democrats take any of these actions, they will be perpetuating the use of the Supreme Court as an ideological football. There is one group of people who can stop this from happening: the court itself, specifically conservative justices. This can happen in one of a few ways, but the most obvious one would be for one or more conservative justices to retire. At a spry 72, Clarence Thomas may feel that his best years are in front of him, and that the Democrats wouldn’t dare tinker with the court’s composition. Justice Alito is 70, and may feel the same way. They should think again. While Joe Biden has indicated that he doesn’t want to get into such structural changes, he hasn’t rule them out.

Another alternative would be a clear pledge from conservative justices to maintain the status quo of their own accord. This would be a bitter pill to swallow, because it requires that one sublimate deeply held principles for the good of the institution. Indeed, one might ask, if one were to do this, why not retire from the court?

Even one conservative stepping down would be patriotic. It would allow the Senate to re-establish a comity that has been absent under Mitch McConnell, allowing things to get back to normal. It would also allow some rational discussion of what if any court reform would be necessary, such that it could take place in a bipartisan spirit. Whoever does this would be establishing a legacy that would likely far outlast any decision on the court.

Pardons in the Kingdom of Mississippi

I’m a pretty liberal guy. I wear the label proudly. To me “liberal” means, amongst many other things, belief in the system of checks and balances. Today, the Mississippi Supreme Court abrogated their responsibility as part of that system in that state.

The Press is widely reporting that the Mississippi Supreme Court has refused to overturn nearly 200 pardons issued by former Governor Haley Barbour on his way out of town. At issue is a provision in Article 5 §124 of the Mississippi State Constitution that says the following:

but no pardon shall be granted before conviction; and in cases of felony, after conviction no pardon shall be granted until the applicant therefor shall have published for thirty days, in some newspaper in the county where the crime was committed, and in case there be no newspaper published in said county, then in an adjoining county, his petition for pardon, setting forth therein the reasons why such pardon should be granted.

Let’s put aside the consequences to the convicts and to the families of those who were harmed by them. While I don’t like the provision, it’s there. We can even argue about what it means. Who should ultimately decide? I would think the Mississippi Supreme Court. Apparently not. Here is what Chief Justice William L. Waller, Jr. had to say in a 6-3 decision:

Certainly, no one would argue that a court could investigate and determine the wisdom or propriety of a governor’s acts, including pardons. However, the constitutionality of a governor’s acts, including pardons, is a question which the court must determine.

As it happens, my last blog entry talked about how former Speaker of the House Newt Gingrich challenged the notion of Marbury v. Madison, where they reaffirmed their responsibility and authority to be the final judges on the meaning of the Constitution. That logic, that separates presidents from kings and queens apparently does not apply in Mississippi.

There are some missing bits of information. How could the court have veered so far from this cornerstone of American jurisprudence? What other provisions of the Constitution would they choose not to enforce? Why, for instance, are they receiving a paycheck?

Gingrich v. Marbury v. Madison

A number of news articles have appeared about how former Speaker of the House and current presidential candidate Newt Gingrich is claiming that he would ignore the court rulings that he doesn’t like. Nobody is above the law, but who gets to decide what the law is, and how it applies? According to Mr. Gingrich, he is. He wrote, “Should the Supreme Court issue decisions during a Gingrich administration that unconstitutionally empower federal judges with certain national security responsibilities, such decisions will be ignored”. Mr. Gingrich contradicts law that is literally written in stone.

In 1803, on his way out of town, President John Adams and his party attempted to fill a number of key appointments. One of those was that of the Justice of the Peace for the District of Columbia. Having been nominated by the President and confirmed by the Senate, William Marbury needed only receive his commission of office from the Secretary of State. He never got it, because his was one of a number of last minute commissions, and there simply wasn’t enough time to deliver it before Adams and his Secretary of State left office. When Thomas Jefferson took office as President, and he appointed James Madison as the new Secretary of State. When Marbury came calling for his commission of office, Madison refused to give it to him. Marbury sued, requesting what is known as a Writ of Mandamus to compel the Secretary of State to disgorge the commission, as provided by the Judiciary Act of 1789.

In a fascinating opinion, the Supreme Court of the United States said that they did not have the power to force Madison issue the writ. By articulating what power the Court didn’t have, John Marshall‘s opinion of the Court in effect voided a portion of the act, and for the first time established that not only is the Constitution the highest law of the land, but that the Supreme Court is the final interpreter of the Constitution. Since the President’s power is defined in the Constitution, it therefore holds that the Supreme Court is the final arbiter of the President’s powers, as well. Prior to that, while some may have thought that this was so, in fact it hadn’t been decided.

In the truest sense of the words, Marbury v. Madison is stare decisis, or settled law. But every so many decades, even settled law can become unsettled. This has happened when social norms have changed, or more likely when interpretation of the Constitution has changed. But the change has always come from the Supreme Court itself, and not from Congress and the States, and never from the President.

According to the Wall Street Journal‘s article, Mr. Gingrich proposes a mechanism by which the other two branches of government could override the Supreme Court. That’s dangerous.

Contrary to Gingrich’s assertions, a reckless Court was the last thing on the founders’ minds. Through Article 3 Section 2 of the Constitution, Congress can limit the jurisdiction of the Supreme Court. The States through their legislatures have the power to amend the Constitution. The President has no role in either interpreting the Constitution or changing it. This was no accident, as the founders had just fought a war against a king.

This is not to say that the President has no influence. Although the Court is substantially insulated from day to day politics, the justices themselves take into account circumstances, as was clear in Korematsu v. United States. In that case where the justices bent their will to the times, the results can only be said to be tragic. Interestingly, it seems that the U.S. Patriot Act has not yet been tested by the Supreme Court. What separates America from dictatorship is our rule of law. Let that test happen at some point, and let’s not have another king overrule the Court.

As if they read my blog…

The Wall Street Journal has a follow-up today that talks about how police track our locations with our cell phones. Now, answering one of my own questions, thanks to some discussion with my wife, what is the difference between using a GPS tracker and a cell phone?

First, of course you can always turn off your cell phone. Because you know you are being tracked, you have a means to defend your privacy. Is it a reasonable means? I would argue “no”. In addition, the feds do not own the data. Instead they have to go to the phone companies to get it. And they do that quite a bit more than using GPS trackers, according to the article. And why not? You pay for the cell phone and your carrier retains the data. It’s darn cheap for the police to make use of all of that rather than have to pay for the tracker and manage it.

There’s another big difference that I alluded to. Police in America do get a court order for cell phone location information. This is why I believe the Obama administration should fail. It is not an onerous task, judging by numbers, to get such an order, and since it isn’t, the onus falls on the administration to show why they shouldn’t make use of the exact same mechanism when the technology changes.

GPS and the 4th Amendment: Can police track you without your knowledge?

Does the government have the right to know where you are at all times? This is a question that will be answered by the Supreme Court over the next year. The Wall Street Journal reports that the Supreme Court will examine today a case in which the police and the FBI attached a GPS tracking device to the car of a night club owner who was suspected of dealing drugs. At issue is whether this constituted an unreasonable search or seizure by the government, a violation of the Fourth Amendment of the U.S. Constitution.

As the article points out, the Fourth Amendment protects us only from the government eye when there is some reasonable expectation of privacy. That which occurs on the street in plain view is not usually considered private. However, in this case, the question is whether the body of evidence gathered by the police would be considerably more than just some onlooker happening to see you at a particular point in time. Instead, it would be more like an concerted army of people following you 24 hours per day for as long as the GPS unit were in place.

From a technology perspective, while it may be possible to detect such tracking devices, it might prove very difficult. For one thing, there’s no reason the device would need to signal to the police every moment of the day where it is. Rather it could store the information and transmit it only periodically.

What’s more, we all carry tracking devices with us nearly 24 hours per day. They’re called cell phones. While some use GPS, the cell phone network knows where you are (or at least where your phone is), with or without GPS.

Here are my questions:

Does the government need a warrant to receive cellular network location data? If so, what is the difference between cellular network location data and GPS tracking data?
If the government has the right to install a tracking device, assuming you could find the device, do you have the right to remove it? After all, it is your vehicle.
If the government has the right to track you via GPS, can others do the same? What is to stop insurance companies, employers, or criminals from tracking you?

It’s the first question I find most profound, because if the government is allowed to attach these devices to you without a warrant, without any cause, they can follow anyone from anywhere to anywhere at any time, from birth to death. In fact, they could create an enormous database to simply keep track of the location of everyone.

This is not to say that the government shouldn’t track people it reasonably believes to be criminals. That is why the judiciary exists- to provide oversight over the process so that peoples’ rights can be balanced.

One final scary thought: such a database might already exist, and might be in the hands of criminals. As I wrote above, cellular companies already know where you are. If they’ve been hacked and don’t know it, who knows where that data resides?