Looking to the future, at such time as the American people elect Senators and Representatives who are committed to reining in supremacist judges, a plan for “such exceptions,” provided for by the Article III, Section 2, should be at hand.
By the authority of Article I, Section 8, of the Constitution, the representatives we elect to Congress “shall have power… to constitute tribunals inferior to the Supreme Court.” Article III, Section 1, reads: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Article III, Section 2, reads: “The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under the regulations as the Congress shall make.”
Congress has limited the courts several times in the past. Provisions in the Constitution were predetermined to aid in doing just that, regulating the balance of power with necessary exceptions. These should also be the talking points until necessary corrective change is achieved for today.
The following exception would be effective. Any future court decisions reflecting upon the first ten amendments that are not clearly linked to their meaning, as understood prior to 1947, would be classified as a Supreme Court Interim Opinion or some similar designation. Going back to 1947 is a heavy lift, but it only applies to future court decisions that hinge upon the so foundational basis for “government of laws, and not of men.” Categories of law that are not related to the first ten amendments would be exempt from the Supreme Court Interim Opinion requirement. If the legislative branch does not pass laws to solve the problem dealt within a Supreme Court Interim Opinion within a specified period of time (for example, three years), the court decision would expire regardless of the ramifications.
Adoption of the Supreme Court Interim Opinion requirement by Congress blends with the legislative and judicial separation of powers without undermining judicial independence, and it is consistent with the constitutional system of checks and balances. Our representatives in Congress would then bear responsibility for treatment of the problem, and the Supreme Court would be shielded from the bleeding of reprehensible engineering imposed by unelected judges.
Going back to the 1947 precedent requirement is a logical time for instituting the Interim Opinion requirement. It was in 1947 that the Supreme Court majority twisted and undermined the citizens’ First Amendment protections from government-established authoritarians.
Stare decisis is no excuse for preserving court precedents. Stare decisis is legal talk for an everyday practice that we all follow. It simply means that once a decision is implemented, it should be supported for a considerable period of time to see if, in fact, it is helping or, at a minimum, not doing harm. When a law is proven to be harmful, that law should be reversed. The practice of preserving court precedent was never intended to be a mandate for national suicide.
If there is a better approach than instituting a Supreme Court Interim Opinion requirement for restoring sanity to the judiciary, then have that approach be the public goal. Determining a better approach is the duty of conservative lawyers and judges, who are better situated to frame a solution. The recommendation needs to be reasonable and would require an ongoing, nationwide sales campaign until it is successful. This would best be determined by a citizen Congress composed of conservative lawyers, law professors and judges, convened to make recommendations for restoring the rule of law. The Congress should involve participants from every state, be privately funded, and meet in secret for the same reasons the Constitutional Convention met in secret. This Congress would compare in importance to the decision-making phase for the judiciary conducted by the Constitutional Convention.
~ David Norris