Congress Can Rein In the Supreme Court's Ideologues If It Uses Its Authority

Who would have thought that "The Donald" - the leading candidate for the GOP Presidential nomination - would on two occasions bring up the issue of buying off members of Congress with donations? The first time was during the first GOP debate in early August in front of a national TV audience of millions. The obscene amounts of money buying politicians during this cycle will surely surpass the amounts raised in the last Presidential and Congressional elections, and those Super PACs are taking in unprecedented amounts of cash, all the while being allowed to conceal the identities of their donors. This amounts to little more than legalized bribery, which the Supreme Court has aided and abetted with their rulings on McCutcheon, Citizens United, and similar decisions. The McCutcheon decision by the Roberts Court removed aggregate limits on donations, making the former $123,000.00 per person, per cycle limit seem like peanuts compared to what can be given now.

In response to this, Trump has said he doesn't need money from special interests and - more tellingly - "I give to everybody. When they call, I give. And you know what? When I need something from them, two years later, three years later, I call them. They are there for me. And that's a broken system." He has made a point of noting that members of Congress in both parties and even Hillary and the Clinton Foundation have benefited from his generosity. Of course, no one in the media has looked into his claims for further details about just what was received in return for this "quid pro quo."

Meanwhile, The Donald remains front and center, topping the GOP polls with his outrageous, insulting, in-your-face brand of politics. He has offended the Latino community, proposing that we expel those 11 million undocumented immigrants and remove citizenship from their children who were born in America. Does he not know he is taking on the 14th Amendment, which clearly states all children born here are U.S. citizens? He appeals to the worst instincts of division and prejudice imaginable, and he remains clueless about the cost and the impossibility of even carrying out such a massive exodus from our country. Fomenting hatred and dumbing down complicated issues are his trademarks. His fellow GOP'ers don't even think he is a Republican, and he has even been called a liberal by some of them. Ouch.

Meanwhile, Bernie Sanders' response to the corrupting money that has a strangle hold on our country has been to consistently state that "this country belongs to all of us," and not just a handful of millionaires and billionaires. His historic campaign is about taking them on and returning democracy to The People with his ever-growing protest revolution. His appeal has spread beyond just Progressives, as all hard-working Americans can find something about Bernie and his 12-point, inclusive platform that addresses a myriad of issues facing our nation. No other candidate has offered anything comparable, and he is attracting the largest crowds of any candidate for the highest office in our country. Never have we seen a candidate make running against oligarchy the leading centerpiece of their campaign, yet at every stop across the country, Bernie talks about what a small cabal of greedy, self-serving millionaires and billionaires are doing to this country. This is the fight of our lifetimes to take back our democracy, and Bernie is the only candidate of the multitude running who is consistently on point on issue after issue.

The other morning, while having a cup of coffee at my local coffee shop, the restaurant's milk guy came in with his delivery. He is very conservative and lives in upstate New York, but boy was I heartened to hear him say, "Bernie isn't bad and is addressing issues." When I asked if he and the restaurant owner were ready to change parties, silence reigned - clearly more work is needed here. Even so, the conservative restaurant owner quipped that if Bernie makes it to the general election he will hand me a check for Bernie for $2,500. So far, Bernie is attracting national attention with his message, even though we know the media game is rigged against him. We who support him must fight back.

We should all read the Constitution to see how right-wing extremists have perverted so much of its intent and how this Supreme Court - with its five Conservative ideologues, led by Chief Justice Roberts - have played fast and loose with its rulings about campaign finance laws for nearly ten years now. Indeed, the campaign finance corruption train started in 1976 with Buckley v. Valeo, and we have been declining as a nation ever since. The recent Citizens United and McCutcheon rulings did little more than to hand our country over to about 400 millionaire and billionaire families who control Congress and our government with their checkbooks. They now seek to buy the White House. Little did the framers of the Constitution - who were so concerned about corruption - know that the corruption they most feared would wind up coming from the Supreme Court. Any such threat to our democracy was viewed as tyranny by the framers.

In her book, Corruption in America, professor and former candidate for New York governor Zephyr Teachout notes that corruption in America is not new, as she chronicles perhaps its beginnings in the court of France under Louis XVI, who, in 1785, gave the departing Ben Franklin - following several years of service as our representative in Paris - a gift of an encrusted gold and jeweled snuff box adorned with 408 diamonds. "The snuff box stood for friendship, or old world corruption, respect or bribery, depending on the perspective," remarks Teachout. It seems the same confusion may be at play with the current Roberts Court - at least with the five Conservative justices when it comes to their rulings in campaign finance cases. They have had a hard time justifying how such "quid pro quo" can somehow produce democratic results. Since the 1990s, members of Congress spend from 30 percent to 70 percent of their week raising campaign funds, which is their primary job, according to Teachout. These legislators also know that if they go against these moneyed interests, their funding will dry up. Does this sound any longer like a democracy run for and by The People? Or is it a plutocracy run by and for the millionaires and billionaires?

It would be a tremendously difficult - if noble - undertaking to try and amend our Constitution to reverse Citizens United, McCutcheon and other related campaign finance rulings of the Supreme Court by means of a 28th Amendment. It would be a backbreaking effort that could take years or even decades. It speaks volumes that there have been so few Amendments following the initial Bill of Rights. Even so, the effort to pass such an amendment has been underway since day one of these recent gross rulings - and even before that, campaign finance reform amendments have been regularly proposed in Congress, going back to 1983. Perhaps it is also time to look at the root cause of these rulings in the first place, because an amendment reversing Citizens United and McCutcheon will only address that one issue, and it will not change the makeup of the Court that created this horrific sellout of our country.

Indeed, we are seeing other attacks from the same source on our civil and human rights, in particular the snipping away of our voting rights and continued attacks on women's health rights. We must look for ways to hold these ideologues accountable on the Supreme Court. Right now this is the only court without a code of ethics, and some of their antics cry out for restraint, such as Conservative justices appearing at Koch brothers sponsored fundraisers; not recusing themselves in cases with conflicts of interest; and not reporting income of a spouse who appeared at a Conservative think tank to the IRS. To their credit, Rep. Louise Slaughter (D-NY 25) and Senator Richard Blumenthal (D-CT) have companion bills calling for a Supreme Court Code of Ethics. The highest court in the land deserves the most scrutiny. It is safe to say that the nation's respect for this court is in the garbage can, where it rightly deserves to be. While these bills are commendable they don't go far enough and are pretty tame. Even so, they must be passed.

Larger remedies and issues are being raised in forthcoming books by Constitutional lawyer Rob Hager. He has been extraordinarily generous with his time and expertise in giving me a crash course on Constitutional law over the past few months, and I am most grateful that HuffPost gets a first insight into some of his passion and work to change our highest court. My earliest question to Rob was about "good behavior" of the Supreme Court justices, which appears in Article III Section 1 of the Constitution. It reads, in part: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour..." No-one in Congress has apparently questioned the renegade behavior we see in evidence coming from the five Conservative ideologues' repeated distortions of the Constitution through their controversial rulings, which are certainly grounds to question their lack of "good Behaviour." Congress might even question their role as a judicial branch of government, and not a shadow legislative branch. Are these flagrant abuses of their powers criminal? Have they been deliberately overstepping their authority in some of these rulings in order to legislate from the bench? One has to wonder.

To further add insult to injury, this is an un-elected body that goes through a confirmation process in the Senate, which can itself be a questionable process, depending on who controls the Senate and, therefore, the debate and vote. Some ground rules are certainly needed, which are offered by Mr. Hager in the draft of his new book, Strategy for Democracy. I have been privileged to get a sneak preview of Part IV of this book, entitled "How Congress Can Curb the Court's Legislative Power over Elections." In it he proposes a law he calls the "Judicial Supremacy Remonstrance Act," (JSRA) which offers some critical features:

  • The JSRA provisions would first describe known criteria distinguishing judicial from legislative power, and second provide for Congress to call a National Referendum if the justices have committed an act of judicial supremacy by usurping important legislative powers in violation of those legal criteria.

  • The potential penalties in this proposed law prohibiting what Chief Justice Marshall in 1821 called "treason to the constitution" are numerous, including civil and criminal consequences, but most importantly the removal of those judges who fail to maintain that constitutionally required good behavior by being found guilty - by the people in a referendum - of violating the Constitution's separation of powers by usurping legislative powers. Hager told me, "There are no other ethics or standards of much political importance provided the judges can be forced to stick to their assigned job of applying the law and prevented from deciding political questions."
  • The JSRA law sets out these ground rules for dealing with any instance of judicial supremacy, borrowing from Lincoln's critique of the Dred Scott decision and FDR's attack on the Lochner-era Court, among other historical precedents. It also itself initiates the process for reversal of Buckley v. Valeo and the Court's supremacist "money is speech" proposition that is at the root of the problem of systemic corruption. This proposition is rejected by a majority in the polls and is supported only by a logical shell game, says Hager.
  • The law would schedule a referendum when the Court is on its summer break, and postpone the next term of the Court by law until new justices are appointed to replace the removed justices, and possibly even until a new general election is held under new or restored election integrity laws that ban private money from politics, which the old Court of "bad behavior" illegitimately declared unconstitutional. These extreme measures for "checking and balancing" the Court are supported by precedent.
  • Ever since the justices who decided Dred Scott dared to commit the "treason against the Constitution" of judicial supremacy - thereby paving the way to secession and the Civil War - our democracy has needed innovative means to overcome this offense. Lincoln campaigned against Dred Scott and overturned it by means of derision of the justices who wrote it, backed by his forceful legal indictment of its constitutional illegitimacy that justified his ignoring it as President. FDR used the threat of Court-curbing legislation and his Fireside Chats about the illegitimacy of the "Nine Old Men" taking over the economy to achieve the same result.

    Now, the judicial supremacy of our own times has created the current conditions for systemic corruption. As Hager writes:

    "The Supreme Court's usurpation of political powers to invent rules that are not clearly found in the Constitution has been used to disenfranchise the majority and to empower the rich minority." Like Lincoln and FDR, we are also in need of a creative strategy to overcome judicial supremacy, which has again caused a crisis of democracy.

    "Anyone bound by conventional liberal thinking, which elevates the Supreme Court's political decisions above ordinary democratic politics - in other words, those mired in the judicial supremacist ideology - are the heart of the problem. A judicial supremacist ideology that is supposed to prevent us from even questioning their power to invent new law is itself pretty good evidence of the judges' illegitimate seizure of power. As Einstein said of dissent from such orthodoxies in science, 'if at first an idea does not seem absurd, there is no hope for it.' Another scientist wrote: 'True geniuses are the people who, by hook or crook, figure out how to ask the right questions.'

    "The right question is not how to perform the all-but-impossible task of amending the Constitution, or even what to say in such an amendment, which is not yet determined. It is rather how to best use the existing Constitution to make law that will force five plutocratic justices to stop violating the Constitution.

    "Unity needs to be developed around these questions about the Supreme Court as the only important questions for recovering our democracy. 'What we have is systemic corruption and the solution for it is already in the Constitution. It is democracy. Judicial supremacy is the opposite of democracy.'"

    These are incredibly important contributions by Rob Hager to reclaiming our democracy, and his books will have a profound effect on that realization. They also usefully draw our attention to what one of the Founding Fathers accurately predicted long ago:

    "To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy." - Thomas Jefferson

    - with Jonathan Stone