Uniting court — and country

March 26, 2013

The comedian Peter Cook once joked, “I could have been a judge, but I never had the Latin.” Instead, he became a coal miner. “They only ask one question. They say, ‘Who are you?’ And I got 75 percent for that.” As the laughter subsided, Cook added a satirical kicker. “Being a miner, as soon as you are too old and tired and sick and stupid to do the job properly, you have to go. Well, the very opposite applies with the judges.”

It seems that Supreme Court Justice Anthony Kennedy may have been listening to some of Cook’s old records. Ahead of this week’s landmark hearings in which the Supremes hear two cases in which they are being invited to decide whether same-sex marriages are constitutional, Kennedy made a sharp and surprising critique of the role the court has played in recent years in settling awkward matters that would have been far better decided by Congress. “A democracy,” he declared, “should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say.”

It is a strange admission for a Supreme Court justice. Cook made fun of the fact that senior judges are mostly old and doddery, and the older and more doddery they become, the more detached they are from normal life. Many who believe that justice should be impartial welcome the rarefied atmosphere in which judges tend to live and make their decisions. Kennedy, meanwhile, is suggesting the opposite ‑ that if justices have to be brought in to decide issues that would better have been solved by Congress, they should be more of an age and closer to the backgrounds of the ordinary Americans who must live with their decisions.

Kennedy is not quite a turkey voting for Thanksgiving, perhaps. But his distaste at having to make decisions other parts of government cannot bring themselves to take is an indictment of a system of government that, after 250 years, has led to purposeless deadlock and stasis.

The same-sex marriage cases have also brought to the fore critical remarks about the court’s decision-making by another justice, Ruth Bader Ginsburg, ruminating on whether the 1973 decision granting women the constitutional right to an abortion was correct.

“It’s not that the judgment was wrong, but it moved too far, too fast,” she said. Conservatives have largely ignored Kennedy’s remarks, which condemned dysfunction in Congress, but have leapt upon those of Ginsburg ‑ or at least the last four words of her sentence, which serve their purpose.

Ginsburg’s point, as she made clear, was not that the court should have outlawed abortion but that by choosing to decide Roe v. Wade, rather than other related cases that may have allowed a more gentle, less abrupt introduction of legal abortions, the court’s decision had unnecessarily kept arguments over abortion alive for the last 40 years. She would have preferred, she said, that the crucial issue had been that making abortion illegal discriminated against women and inhibited gender equality.

Ginsburg also regrets that Roe v. Wade politicized a court that had otherwise been largely trusted by the people to be legally and politically impartial. “The Supreme Court’s decision,” she said, “was a perfect rallying point for people who disagreed with the notion that it should be a woman’s choice. They could, instead of fighting in the trenches legislature by legislature, go after this decision by unelected judges.”

While Ginsburg’s thinking out loud questions the wisdom of rulings by recent justices, Kennedy’s criticism is as much a condemnation of the Founding Fathers as the modern judges. The Founders, of course, all 18th century gentlemen of a similar background and education, are the ultimate example of “unelected people from a narrow background” making far-reaching rulings that have ever since cast doubt on democratic decisions made in Congress. The Founding Fathers believed, as did Montesquieu, that to prevent tyranny it is necessary to divide government between an elected legislature, an elected executive and an unelected independent judiciary.

It was the Founders who thereby sowed the seeds of the impotent gridlock in Washington today that passes for government. Perhaps they believed that the sort of people who became politicians would always rather get things done than twiddle their thumbs. They did not count on the unthinking absolutism of today’s foot-dragging, ideologically driven elected officials.

As the nation has become more deeply divided since the “culture wars” set off by the 1960s social revolution, so the court has found itself increasingly called upon to decide pivotal issues on a simple test of whether they are constitutional. That is, whether the Founding Fathers would have agreed with them.

As visionary as the Founders were, there are many aspects of modern life they plainly could not dream of ‑ such as the rejection by women, slaves, racial minorities and gays and lesbians of the second-class status allotted them by government.

Nonetheless, because today Congress, reflecting society’s deep divisions, cannot seem to decide much, it is the Founders whose minds must be second guessed by the Supreme Court. The result has been a series of questionable big decisions, such as the 2010 Citizens United v. Federal Election Commission ruling that allows anonymous money to swamp the political process; the Affordable Care Act, which obliges people on pain of law to buy a commercial product; and above all, perhaps, Bush v. Gore, a case so contentious, divisive and intellectually unsure that the justices ruled that their pronouncement should never be used as a precedent.

Little wonder that the court, which until the turn of the century was considered honest, impartial and trustworthy, has in the past decade plummeted in public esteem.

Can anything be done to restore the court to its previous preeminence as an impartial body employed only as a last resort, rather than an overt political body used to overrule a divided legislature? Not much and not easily. Not least because the court enjoys a rare form of Catch-22, in which it is its own judge and jury. It is likely to rule any attempt to alter its role, its makeup or its modus operandi as unconstitutional. The last time (1937) a president (Franklin D. Roosevelt) attempted to pack the court with his own people, as he was entitled to under the Constitution, he failed to take with him enough of the Senate and the bid miserably failed.

The court could improve its standing, however, by picking cases more carefully, to ensure that its judgments ring true to a majority of the people rather than legislating by verdict handed down from on high. That is what Ginsburg was suggesting.

If the court wishes to move closer to real life, as Kennedy suggests, it could institute term limits for membership, or agree on a custom whereby justices retire at a certain age. Congress could help, too, by giving a clear, unequivocal indication of what it believes the people want.

That is what appears to have influenced Chief Justice John Roberts in his decision to back the Affordable Care Act. It would have been too divisive and undemocratic to overturn a central piece of legislation that was promised by the winner in a presidential election and had subsequently received a clear majority in both House and Senate.

But the key to restoring confidence in the court, starting with the justices, is if the American people were to agree with each other more. That may merely mean waiting for the passage of time. What is evident from the swift turnaround in attitudes towards homosexuality in general, and gay marriage in particular, is that the pendulum of public opinion is still swinging in a permissive direction and that opposition to a more liberal, softer society is declining as the older, less tolerant generation grows even older and loosens its grip on the nation.

As the conservative sage George Will, hardly a progressive, has pointed out, “Quite literally, the opposition to gay marriage is dying.”


Nicholas Wapshott’s Keynes Hayek: The Clash That Defined Modern Economics is published by W. W. Norton. Read extracts here.


PHOTO (Top): Supreme Court justices in a group portrait in the East Conference Room at the Supreme Court Building in Washington, October 8, 2010. Seated from left to right in front row are: Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy, Associate Justice Ruth Bader Ginsburg. Standing from left to right in back row are: Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr., and Associate Justice Elena Kagan. REUTERS/Larry Downing

Photo (Insert): Associate Justice Anthony M. Kennedy October 8, 2010. REUTERS/Larry Downing






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It is refreshing to hear that “Kennedy made a sharp and surprising critique of the role the court has played in recent years in settling awkward matters that would have been far better decided by Congress.”

Unfortuntely, that admission is far too little, far too late for the US Supreme Court — or at last one Justice — to admit the Court should not have involved itself in areas best left to Congress.

Supreme Court involvement is a major reason why this country is so messed up. Frankly, even China with its system of central leadership is FAR more “democratic” than this squabbling POS country. The Chinese leadership is changed regularly, without it leaders remaining in power until death.

If you think the US Supreme Court isn’t really running this nation, you have no idea how wrong you are.

First of all, there is NO provision for a US Supreme Court in the US Constitution.

I submit that if our Founding Fathers had wanted one, they would have made it a part of the Constitution, but they didn’t. Otherwise, you would have to assume this one MASSIVE oversight by people who were quite savvy in terms of setting up the Plutocracy they wanted for themselves.

NO, this is NOT a democracy. Never has been.

So, you ask, how did the Supreme Court become the illegal abomination it is today?

To answer that you have to go back to the Marshall Court (1801-1835, and especially the seemingly innocuous decision of Marbury v. Madison (1803).


From Wikipedia (solely for ease of access).

“The Court’s power and prestige waxed during the Marshall Court (1801–1835).[7]

(1) Under Marshall, the Court established the principle of judicial review, including specifying itself as the supreme expositor of the Constitution (Marbury v. Madison)[8][9]

(2) and made several important constitutional rulings giving shape and substance to the balance of power between the federal government and the states (prominently, Martin v. Hunter’s Lessee, McCulloch v. Maryland and Gibbons v. Ogden).[10][11][12][13]



So what does this mean in plain language?


So what you say?

Here is the definition of Judicial Review:

“The principle by which courts can declare acts of either the executive branch or the legislative branch unconstitutional. The Supreme Court has exercised this power, for example, to revoke state laws that denied civil rights guaranteed by the Constitution. ( See also checks and balances.)”


Thus, the Supreme Court set ITSELF up a the supreme ruler — ruling council, if you prefer — in this country, above that of any other branch of government, including the states.

THAT was NOT what was intended in the US Constitution as drafted and passed into law by the Founding Fathers.

In fact, the US Supreme Court has NO legal authority to pronounce judgement on the Constitution, nor to judge the constitutionality of laws passed by Congress.

Instead, it seized power ILLEGALLY.

THAT is a main reason why we have the mess of a government we have today.

Checks and Balances?


If you examine the pathetic history of the US Supreme Court, you will find an obscene record of arbitrary and capricious “rulings” since 1803 that they had/have NO RIGHT to be making.

In summary, they seized power illegally and exercise power illegally.

Unfortunately, the other branches of government are equally complicit, since they are the aiding and abetting an illegal overthrow of this government.

There is simply no other way to look at it.

What I fail to understand is why the other branches of government have failed their responsibilites so completely — in other words, to seize power back from the Supreme Court — when all it requires is a refusal to follow the dictates of the court, especially since Court has NO power to enforce their rulings.

Instead, they rely on the other branches of government to implement rulings for them, MOST OF WHICH HAVE HAD NOTHING TO DO WITH “JUSTICE”.

Obviously, the real reason is it has been in the best interests of the ruling elite to keep the charade going.

THAT is NOT in the best interests of the American people, and a major reason for the unbelievable mess we have today, with a governmetn totally out of control

THAT is why this country is generally considered to be the most litigious nation in the world. The word litigious means “excessively or readily inclined to litigate”.

THAT is why we have a “system” of government that relies excessively on the court systems, instead of the normal government processes.

This results in a “system of justice” that is directly related to the wealth of a the person, or even worse, the “deep pockets” of a corporation.

Because of the usurpation of power the the US Supreme Court, aided and abetted by the lack of action by Congress to curtail their power, we have sunk to the nightmare of a lawyers’ “wet-dream”.

We are NOT a democracy, and we are overtly run by a group of nine “justices” who have NO authority whatsoever to make the rulings they hand down.

Our government is nothing more than a carefully constructed system of “smoke and mirrors”.

Posted by PseudoTurtle | Report as abusive

If you want proof of my accusations, here is a news item from today’s Reuters.

Supreme Court rules for Comcast in class action

(Reuters) – The Supreme Court on Wednesday ruled in favor of Comcast Corp in an antitrust case over how much it charged cable TV subscribers, further curtailing the ability of people to pursue class action lawsuits.

In a 5-4 decision, the court said a group of cable TV subscribers in the Philadelphia area who accused Comcast of overcharging them as part of an effort to monopolize the market could not sue as a group.

“The permutations involving four theories of liability and 2 million subscribers located in 16 counties are nearly endless,” Justice Antonin Scalia wrote for the majority.

Comcast’s subscribers fell “far short of establishing that damages are capable of measurement on a classwide basis,” he continued. “There is no question that the model failed to measure damages resulting from the particular antitrust injury on which (Comcast’s) liability in this action is premised.”


What this says is that Comcast, a monopoly by any definition of the word, has won the case because it is too difficult for the Supreme Court to figure out the amount of damages resulting from Comcast’s overcharging of its customers.


And you wonder why the Supreme Court is still in power today?

I don’t. They are bought and paid for by the wealthy elite who find them VERY useful in keeping ordinary citizens in bondage.

So, where is the Congressional power to take legal action to break up monopolies, in order to prevent this travesty of justice from occurring in the first place?

Good question.

Obviously, Congress has been bought and paid for by lobbying efforts from Comcast and other organizations to keep their monopies intact, all to the detriment of the American consumers.

In truth, the “free market system” in the US means “all the suckers can bear”.

Posted by PseudoTurtle | Report as abusive

The absolute, total injustice of what passes for an equitable economic system in the POS country makes me angry.

You know I think why this egregious system of economic corruption continues so successfully?

I continues because the American people are too ignorant and/or apathetic to understand what the wealthy elite are doing to them on a personal financial level.

Instead, what generates outrage and anger are non-consequential “issues” like abortion, gun control and gay rights.

The wealthy elite not only know this, but count on it from the “mob”. They wealthy elite don’t care about these things.

They care ONLY about profits and wealth.

They know that with money comes power.

Power to rule absolutely over the ignorant masses, to control the system that is anything but fair, to rule over people who are too stupid to understand what the wealthy elite are doing to them.

What the American people don’t understand is that NONE of these issues the wealthy elite use to distract them from more important things can be easily solved by changing the system.

For example, force strict term limits on government officials so that they cannot set up their political empires, run by a “shadow government”. Totally eliminate “lobbying” because it is nothing more than legalized bribery of our government officials.

Just these two items would substantially shift power into the hands of the people by making our elected officials responsible to those who put them into power. Right now, there is no way to get them out of power, once they attain it. And they are highly susceptible to manipulation by the wealty elite.

THIS would reduce the power of the US Supreme Court and usher in the system of “checks and balances” that were envisioned by our Founding Fathers.

THIS would eliminate the insane total deadlock of our government that responds to the demands of the wealthy elite, and not the American people.

One simple change can accomplish this.

Understand that the constant turmoil of things like abortion rights, gun control and gay rights can be settled IF the government was held responsible to the American people.

ALL of this is a scam.

ALL the wealthy elite care about is money, and the ability to stay in power so they can increase their wealth at your expense.

You MUST unstand what I am telling you.

The ONLY thing that is important when it comes to government is money and how it is distributed by the ruling class.

The present system is egregiously unfair to the American people, and it is about to get a whole lot worse.

You need to change your focus from “hot button” emotional issues that are destroying this nation by dividing its people and begin to focus on money, which is all the wealthy class cares about.

Understand that the wealthy class wants to keep you divided and fighting among yourselves.

THAT is how they maintain their power.

You NEED to deal with them on the issues that they don’t want you to focus on, which is how they are running this nation.

They assume that you will continue to act like a mindless mob, with no understanding of what they are doing to you.


Posted by PseudoTurtle | Report as abusive

For all you highly-educated, but mentally-challenged products of our world-renowned educational system, let me make it simple for you.

Taking least contentious of the three hot button issues I mentioned above, which in my mind would (arguably) be gun control, mainly because it does not involve personal religious or sexual orientation beliefs, and supposedly represents an issue that seemingly cannot be solved by the Supreme Court.

In line with what I said above about the wealthy elite not wanting to resolve this issue because of the massive profits that roll in from the gun industry, and which is reflected in the equally massive bribes (sorry, lobbying efforts) made to our government officials to keep things just as they are.

There are several issues related, so try to keep up.

As I pointed out above, the US Supreme Court does not have the legal power to interpret the Constitution. In fact, there is no provision for the court’s existence whatsoever.

Thus, going to the Supreme Court every few years to obtain a “ruling” on what exactly the 2nd Amendment really means is totally pointless exercise in futility.

However, it does reward the wealthy elite and our government officials to keep this “shell game” going.

THAT is the truth of the matter, but you will never get the wealthy class, nor our government to admit they are running a scam on the American people.

Let me give you a bit of a history lesson.

Way back when our Founding Fathers drew up the US Constitution, it was clearly drawn up for “States Rights” — in other words the power of the individual states — to be the dominant power over the Federal Government.

For a whole lot of reasons — including the ascension to power of the Supreme Court which gave “legal gloss” to the rising power of the Federal Government — this country expanded by virtue of the power of the Federal Government.

You know, “Manifest Destiny” and all that crap, which was there right from the beginning, just not quite so evident.

Anyhow, this all came to a head in the Civil War (1862-65), or “War of Northern Aggression”, if you prefer.

At that point the idea of “States Rights”, which is really the underlying idea of the US Constitution was crushed by the invasion of the South by the North.

So where is this history lesson leading?

The lesson is that the power of the ruling elite was first illegally expanded by the US Supreme Court, which was then used by the wealthy to expand the power of the Federal Government as this country moved westward.

NONE of this — the power of the Federal Government, nor the US Supreme Court — is legally sanctioned by the US Constitution.

So, how does this solve the issue of gun control?

The really ugly truth is the Federal Government — extending its power through that of the supposed power of the Supreme Court — has NO CONSTITUTIONAL RIGHT TO FORCE THE STATES TO COMPLY WITH FEDERAL LAW.

Thus, each state can decide on its own, whether or not they want gun control and to what extent.

The same goes for all the other hot button issues, including abortion, gay rights and immigration.

The Federal Government is illegally forcing the individual states to comply with their demands, whether the states want to or not.

THAT is the real problem underneath all of this insanity.

Posted by PseudoTurtle | Report as abusive

I would like to clarify one point above about the futile attempts to interpret the 2nd Amendment.

Taken literally, in its original context — there can be no other way to interpret it, except in the context of the society that existed when it was written — its meaning becomes quite clear.

“As passed by the Congress:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

This is meant to apply to States Rights being over that of the Federal Government.

And to protect the States from the Federal Government, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

THAT is why going to the US Supreme Court for a “legal” ruling is absolutely pointless, and the problem of gun control will never be resolved.

The same is true for all the other hot button issues, since they relate to States Rights versus that of the Federal Government as well.

To solve these hot button issues, we must change the power structure to conform with the original intent of the US Constitution.

Good luck on that one!

Posted by PseudoTurtle | Report as abusive

One final comment on this issue.

Notice I am the only one who seems to understand what this article really means in terms of personal freedom and a government that serves the people — which is what the “travel brochures” for this country keep saying.

Freedom and justice for all!

You need to read the fine print, that the country is set up to reward the wealthy class and if you are not born wealthy you are screwed.

Compare the “massive” response to this article compared to the ones about gay rights only yesterday.

The problem is the wealthy elite are absolutely right. The American people are either too stupid or disinterested to understand what is being done to them.

Posted by PseudoTurtle | Report as abusive

Are you people stupid, or is it that you simply don’t care?

The Supreme Court is the key to reducing the power of the entrenched wealthy class in this country.

THAT is what is meant by Roosevelt attempting to “pack the court” to overcome resistance by the wealthy class to economic reforms.

He KNEW the ONLY way to reduce the power of the wealthy-controlled federal government was to threaten to reduce the power of the Supreme Court which they use to implement their strategies to “legally steal” from the Amerian people.


From Wikipedia:

The bipartisan Conservative Coalition that formed in 1937 prevented his packing the Supreme Court or passing any considerable legislation; it abolished many of the relief programs when unemployment diminished during World War II.

Most of the regulations on business were ended about 1975–85, except for the regulation of Wall Street by the Securities and Exchange Commission, which still exists.

Along with several smaller programs, major surviving programs include the Federal Deposit Insurance Corporation, which was created in 1933, and Social Security, which Congress passed in 1935.

In the United States, the conservative coalition was an unofficial Congressional coalition bringing together the conservative majority of the Republican Party and the conservative, mostly Southern, wing of the Democratic Party. It was dominant in Congress from 1937 to 1963 and remained a political force until the mid-1980s, eventually dying out in the 1990s.


The neoconservative movement (think Reaganomics) replaced the Conservative Coalition as the wealthy class power base.

Now it has morphed into splinter groups (e.g. the Tea Party) that are intent on destroying this government and wiping out every single one of the social programs that have been in place since the 1930s.

The key to solving the hot buttton issues are to reduce the power of the Supreme Court, just as Roosevelt attempted to do.

Why do you people not see that?

I would break this “deadlock” in our government that is about to force it to collapse.

Posted by PseudoTurtle | Report as abusive

Or perhaps some shock therapy to wake you up.

Lawyers for accused Colorado theater gunman offer guilty plea

(Reuters) – Defense attorneys for the 25-year-old man accused of killing 12 people in a shooting rampage at a Denver-area movie theater have offered to have him plead guilty in exchange for a life prison term, according to court documents filed on Wednesday.

Lawyers for James Holmes said in the court papers that prosecutors have not yet responded to their offer, which would spare their client the death penalty. Holmes is scheduled to be in court on Monday for a hearing in the high-profile case.


How long are you people willing to put up with mass shootings — not only in theaters, but in your childrens’ shools, especially when you have the ability to do so — just so the wealthy class can make money from selling guns.

They are hiding behind the obfuscation of the Supreme Court.

As the article above indicates, even the justices themselves are beginning to question if what they are doing is best for this nation.

The answer is simple. NO!

If you want to stop all this, you MUST act to change the system.

Posted by PseudoTurtle | Report as abusive

Let me try to summarize:

Our reliance on the Supreme Court, no matter what the supposed reason, is wrong because it denies you your constitutional rights to representative government.

Thus “justice” in this country is a function of how much money you have, or how deep your corporate pockets are.

This is wrong!

The system is broken and needs to be fixed. The problem is excessive reliance on our court system to solve problems that are the responsibility of our legislature.

THIS is what the US Constitution says.

The US Supreme Court is an anomaly that should not even exist — there is NO provision for a Supreme Court mentioned in the Constitution — thus they have NO legitimate Constitutionally-based authority to make ANY decisions to “interpret” the Constitution in modern day terms.

That is why nothing ever gets settled, and why our government is in total deadlock.

To reduce the power of the entrenched wealthy power in our government that is corrupting our elected officials, we must seek their “soft underbelly” which are the Supreme Court rulings that often favor the wealthy class.

That is not “equal justice” for all, it is “unequal justice” bought for the few who are able to purchase it like a commodity. It is destroying this nation.

Many of our current “hot button” issues should not be solved in the courts, but by our legislative processes. Too often courts simply overrule the popular vote, which makes our democratic system worthless and highly susceptible to being hijacked by those who would harm this nation for their own benefit.

School shootings (i.e. issues related to the meaning of our rights under the 2nd Amendment) should NOT be in the purview of the Supreme Court, but issues of gun control should be dealt with locally. This is what the 2nd Amendment really provides for, control at the State level.

Neither should many other issues which often fall most heavily on individual states to deal with, including gay rights, abortions, schools, immigration, energy conservation, etc.

The truth is there is little common consensus across this nation as to how these issues should be handled.

These MUST NOT be relegated to the Federal Government level and the US Supreme Court to decide any longer.

Those should be “States Rights” issues as guaranteed by our Constitution.

This nation has become too diverse to be controlled by a single Federal Government and Supreme Court arrangement of “one size fits all”.

Let’s undo the mistakes of the past and reorganize this nation as a representative democracy as it was designed to be — and that does NOT include an overreaching, overbearing and obtrusive Federal Government that doesn’t care what it does to its people as long as profits keep increasing for the 1%.

This nation has deviated a long ways from what it was meant to be by our Founding Fathers.

We have forgotten what this nation is supposed to be and stand for.

Let’s restore it to the greatness and potential it once had before it is too late.

I can do little or nothing by myself. It is up to you people to do what must be done. We have little time left.

Posted by PseudoTurtle | Report as abusive

Nicholas, I rarely agree with you, as is so in this case yet I enjoy the way you write. The fluidity of your words and turns of phrase usually have me reading your pieces twice so as not to miss anything.

Elder wisdom is not a fairy tale. With experience grows understanding. We want accomplished jurists sitting in the higher courts to act as throttle or relief valve when necessary.

The Citizens United decision annoys many but stripped to it’s essence it merely confirms that if unions can spend unlimited dollars advertising for or against candidates, so can corporations. Obama winning a second term would seem disprove the dire warnings that followed it.

Roe vs. Wade incenses many to this day who would claim no woman has a right to make her own choices regarding pregnancy, but here the Court made a very positive decision for society as a whole by saying this is an individual choice and if the baby is unwanted, better to abort than force mother and child into poverty and bleak outcome.

Any creation of man will be imperfect, but I think the Supreme Court has done an admirable job reflecting the will of the people over the last two centuries, doddering old fogeys though they may be.

Posted by CaptnCrunch | Report as abusive