Consider an extreme and unlikely example, but nonetheless illustrative: Suppose the Supremes were to rule (five to four, of course), that "The United States is a Christian nation," and that henceforth, only confessing Christians could hold public office. Such a ruling would, of course, directly contradict Article Six and the First Amendment to the Constitution. But such considerations have not constrained this Supreme Court or its predecessor. The Constitution also stipulates that the states are to determine the electors in a presidential election. (Article 2, Section 1) In Bush v. Gore, the Supremes ignored that when they brushed aside the Florida Supreme Court's ruling that a statewide recount of the vote must continue. The same court in the same decision, set aside the rule of stare decisis (precedent) when it wrote that "Our consideration is limited to the present circumstances."
The Roberts Court has found no occasion to restore habeas corpus or to reaffirm the Fourth Amendment prohibition of search and seizure, both of which are required by the Constitution, and both of which are openly violated by the Military Commission Act and by Bush's admitted defiance of FISA. And just last month, in Hein v. Freedom from Religion Foundation, the Roberts Court moved half the distance toward an establishment of religion, when it allowed federal tax revenues to be distributed to religious agencies selected by the Bush's White House.
Suppose further that in 2008 a Democratic President and an overwhelmingly Democratic Congress is elected. The Congress then proceeds to enact, and the President to sign, legislation depriving corporations of "personhood" status, instituting single-payer medical coverage, reforming campaign finance, etc. – in short, repealing the abuses of the Bush regime and the GOP Congress and instituting progressive reforms. And then, one by one, all these are voided by the Supreme Court, with rulings that are flimsy at best, and more often plainly absurd, and none of them open to appeal. In short: a nullification by one branch of government of the remaining two branches.
While specifying "checks and balances" against the President and the Congress, the framers of the Constitution failed to likewise constrain the powers of the Supreme Court, other than to allow impeachment if the judges failed to "hold their offices during good behavior," a vexing and vague condition, to say the least. (Article 3, Section 1). All federal officers take an oath to "support the Constitution" (Article 6). But that requirement raises a troubling paradox: How is the Court, or a Justice of the Court, or a ruling of the Court, to be judged to violate the Constitution, when the Court itself is the final interpreter of the Constitution?
Apparently the framers couldn't imagine a time when the Supreme Court itself might become an outlaw, and thus they provided us with no remedy.
Such a time is upon us now, soon to be followed by a desperate search for a remedy.
Facing judiciary tyranny, what is the next President, the Congress, and the vast majority of the voters that elected them, to do?
Testifying under oath before the Senate Judiciary Committee, Roberts and Alito both promised to decide cases as "umpires," without "agendas" or "any preferred outcome in any particular case." And they said they would be guided by precedent – stare decisis. They lied, of course, as is evident in their recent decisions. Unfortunately, since their rulings are open to endless interpretation, charges of perjury will likely lead nowhere.
In view of their few rulings to date (and I fear, far worse to come), it appears that the five controlling justices (Roberts, Alito, Kennedy, Scalia and Thomas) do not see themselves as the guardians of established law and the Constitution. They are activists, championing the agenda of the mega-corporations and the religious right, at the expense of the rights of minorities, the poor, and ordinary individual citizens. They are, in short, the judicial exemplars of Bush/Cheney Inc.
And nothing, it seems, can stop them. Least of all the Democrats in the Congress as now constituted, who, after all, allowed the confirmation of Roberts and Alito.
Are there no remedies?
To say that there are none, is to surrender before the struggle even begins. As Abraham Lincoln reportedly said, "the Constitution is not a suicide pact." So if the framers neglected to provide an easy solution to judicial tyranny, they surely did not intend to allow it by default. It is our task to find a remedy, otherwise we will meekly submit to repression. Here are some suggestions.
Impeachment due to perjury. Clarence Thomas told the Judiciary Committee that he never gave an idle thought to Rowe v. Wade. He also testified that he did not sexually harrass Anita Hill. Might there not still be eyewitness, written, or other testimony and evidence proving that Thomas committed perjury? This approach is not very promising. The evidence is cold, and perhaps Thomas is protected by the statue of limitations. (Lawyers, please help me with this). The Roberts and Alito lies under oath are, as noted above, "open to interpretation," and thus can not overcome the "beyond reasonable doubt" standard.
The "Good Behavior" condition. It is quite possible that a $50 million Ken Starr type investigation would uncover some dark secrets in the lives of "the regressive five" on the court. After all, we are all sinners. But the country can ill afford still more politics of personal destruction. There are two edges to this sword, which can cut away any and all of the comity that is pre-requisite to productive political activity. Furthermore, the "good behavior" condition likely applies to conduct while on the bench, and there is no evidence that any of the Five have "behaved badly" in the ordinary sense during their terms of office. They have "behaved badly" in their recent rulings, but this is a judicial rather than a moral judgment, and surely not what the framers had in mind by their "good behavior" condition.
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