Supreme Court Might Be Wrong
Our constitution is written with the concept of check and balances. Of the three branches of government none can obtain unchecked authority and dominate the other two. Or dominate the people.
But we now see there may be some omissions in these checks and balances. In theory the Supreme Court has no direct authority. If cannot enforce its rulings. And its members are selected by the president and approved by the senate.
This has been sufficient. Until now. A one term president was able to appoint three members of the court, a full one third of the court. A Republican dominated senate approved the politically biased appointees. One of them using outright fraudulent behavior.
And we now have a problem.
Keeping the discussion general, what can be done if the Supreme Court makes a bad ruling. This has happened in the past, and is a problem today.
Once an individual is appointed and approved to the court, there is no check and balance. There is no control over that person, no restraint. In theory, a justice can be impeached and removed. In today’s climate, with extreme conservatism in both the court and congress, its not possible to remove a judge. Further, if a judge makes one mistake, is that really grounds to impeach and convict? In most cases, that answer is no. Again, that is currently the only avenue for a check and balance.
Another avenue is to create a constitutional amendment to overturn the result of a bad decision. But that is rather like using a cannon to kill a fly. An amendment to correct one error does not, cannot, be forward looking. It cannot correct errors not yet committed. The possibility of a constitutional amendment for each error by the Supreme Court is unreasonable. Our constitution should not have to endure that kind of check and balance.
The suggestion
We do need an amendment, but one that is more broadly scoped and is adaptable to varying circumstances. We need an amendment that creates a process whereby an error of the Supreme Court can be corrected without a specific amendment.
I suggest there be an amendment to the Constitution that lays out a path and method by which the will of the people can be assessed and imposed upon the Supreme Court. A single amendment should layout the framework of how this should be accomplished. I’ll not pretend to write the words of such an amendment, but I do submit some concepts that might be used. There are at least three entities that might be used to make such a proclamation.
Appellate Courts.
This amendment addresses a judicial problem so the process should begin with the appellate courts.
There are 13 appellate courts. These are the federal courts one level below the Supreme Court. As this is written, a Wikipedia articles notes there are 179 judgeships on the U.S. courts of appeal. If some percentage of those courts, or some percentage of the appellate judges, take the position that a SCOTUS ruling is wrong, they should have the ability to initiate action. The individual courts or the individual judges should have the authority to write a brief or a judgement explaining exactly what was decided wrong and why. The brief should state a clear position as to what must be considered to be the guiding truth for the present and the future.
The exact mechanism needs discussion. It might be that some number of appellate justices confer and write such a judgement. This would make it based upon individual appellate justices. Or maybe the justices of one of the courts will write such a judgement as a court rather than some number of justices. In that case process be one court at a time.
Following that, there can be some method of counting to reach a threshold before continuing the process. There are at least two avenues for counting. The number of justices that support the brief might be counted. Or the number of appellate courts that render such an opinion may be counted. In either case, some threshold count must be reached for the opinion to proceed to the next stage.
It might even be appropriate for the justices or courts to issue a brief about a dissenting opinion rendered in a Supreme Court decision. The brief would state that some position taken by one or more Supreme Court justices is in error and the justice making such an opinion must change their behavior. Such errors might be corrected before they become a majority opinion. This might be thought of as preventative medicine.
Once written, said brief can be submitted to Congress and the states as now presented.
The two houses of congress can each be a vote, or maybe together. In these times of acrimony, the voting percentage needed to go against SCOTUS needs careful discussion. A separate vote for each house might be best. Should it be required that one or both houses of Congress be in agreement? Of if a sufficient number from the appellate courts concurs, congress might not have a say.
The third leg of the process is the states. Individual states might hold a referendum / public vote. Or their legislatures can weigh in. Or some combination. All states but Nebraska have bicameral legislature. Should each of those houses count as 1 separately, or must both agree. Should the voters have a say in the process. As before with the appellate courts, some method of counting must be implemented.
These methods of counting are quite important because:
The hurdles needed to overturn a Supreme Court decision must be significant, yet not insurmountable. Exactly how to do that will be difficult.
The just noted entities can be counted in some fashion and a collective vote be summed. If the vote exceeds some threshold, then the Supreme Court would be bound to consider said opinion to be the will of the people and all rulings must be congruent with that position.
How would that work. To keep away from current events, consider the Dred Scott decision in 1857. The decision proclaimed that African Americans had no claim to freedom or citizenship. Suppose that this amendment had been in place at that time and that the appellate courts declare the decision invalid. First, that would outright overturn the Supreme Court decision. Second, all Supreme Court justices would be forbidden from rendering opinions that support that overturned opinion.
In effect, the ruling would be considered with equal weight as the constitution itself. As though the decision were a constitutional amendment.
The process might also be reversable. Future courts and legislatures might be sufficiently irritated by a decision that they initiate the process for the purpose of changing a previous action. This should be allowed.
This exemplifies the reason to have high hurdles to overturning a decision. But again, those hurdles must not be insurmountable. The method for accomplishing this will be in how the votes to overturn a decision are counted and what threshold is set to declare the procedure successful. The process of crafting such an amendment will be difficult. But it should be doable.