SCOTUS Reform
The following submission was signed on 06/06/2021 and mailed on 06/07/2021 to the
The Presidential Commission on Supreme Court Reform
C/O the White House, 1600 Pennsylvania Avenue NW, Washington, D.C. 20500.
Submission to The Presidential Commission on Supreme Court Reform
(By Rashmikant C. Desai, individual)
The Constitutional Convention’s delegates deliberated hard over several months to arrive at a consensus draft of our constitution. That consensus enabled the 13 states to get united. The delegates did not have any sample or a precedent to refer to. Yet 39 of them signed it to create a "United" States of America. They gave us our goals in the form of the Preamble and the guiding tool in the form of the Constitution. The Constitution is our map, the Preamble is our destination. On our way thereto, let us not be distracted by other attractions.
Are we united? Not really. We have abandoned the concept of consensus. Even our Supreme Court, supposed to be the lighthouse to alert us against danger, itself stays divided by issuing decisions with flimsy 'majorities' without trying to arrive at a consensus. The 'minority' justices feel so strongly against the injustice about to be perpetrated that they spend time in writing their dissents in futile efforts to stop it. Isn't it an irony that thirty-nine persons could agree to sign one long draft but only nine justices cannot decide the proper interpretation of a part of it? Cannot the Supreme Court focus on the 'preamble' of our constitution?
Blindfold and Scales are the two distinguishing features of the Lady of Justice displayed at many courts and other places related to law. The purpose is to remind all, but specifically the judges and justices, to rise above their personal choices and prejudices while deciding the cases before them. Is this purpose really achieved? The answer, unfortunately, is no. Rarely do the judges issue unanimous decisions. In some cases, the nonunanimous decisions, like the Heller verdict, seem to be in contempt of the blindfold and the scales of the Lady.
Does (5+4) equal (4+5)? Not necessarily. Even if the sum is nine in both cases, there are situations in which the simple math does not hold true. Supreme Court decisions made by five vs four justices are good or bad depending upon which five justices prevailed over the other four. There are nine justices but the decisions seem to have been made as soon as five justices agree to one approach, without consulting the other four, by a split of five against four. All these decisions are about very important matters to be obeyed by all persons living in this country until such time that at a later date another group on the court at that time changes the previous verdict. Therefore, the distinction between (5+4) and (4+5) is serious.
The judges on both sides fail to convince their colleagues. They issue judgements such that they can be called "a strained and unpersuasive reading which overturned longstanding precedent” (Justice John Paul Stevens - District of Columbia v. Heller, 554 U.S. 570 (2008)). Consequently, for many decades, very large number of people end up suffering from the harmful decisions. Isn't it a travesty of justice?
In lower courts, Jury selections initiate the proceedings of the court cases. At this very early stage itself care is taken to exclude persons who may be even partially familiar with the case and may somehow be biased. Why then, the justices of higher courts are allowed to let their prejudices affect the decisions they make? We ordinary citizens serving on juries must concur with, or convince, the other eleven jurors to acquit or convict the accused. These cases involve only a few persons, criminals as well as victims, unlike the cases heard by the Supreme Court. Nonetheless, the latter is allowed to decide cases on a simple majority as flimsy as five vs four.
What does the above mean? A five vs four decision is in fact made by just one justice who preferred the views of one group of four justices to the those of the other group of four justices. Isn't it improper? Any other split would be a little less bad but still not desirable. Even a split of eight vs one would be improper. All this only indicates that the justices are unwilling to respect the views of their colleagues. True justice demands that all of them patiently discuss the issues thoroughly in the interest of all people of this country. Why cannot all the nine justices take time to come to a unanimous decision to fulfil the "original intent" of the constitution as expressed in its preamble?
It can be argued that the Supreme Court is not designed to act like a jury and that it is required only to interpret the constitution. Even if it is true, it does require unanimity among the interpreters; differing navigators down the plane. Nothing contained in the Article III of the constitution or any text elsewhere therein supports this popular misbelief.
There cannot be opinions and counter-opinions regarding very serious matters affecting so many millions of people almost forever or very long times? Wrong and bad "majority" decision in Roe vs Wade has caused murders of thousands of unborn babies. Another one in Citizens United has affected our elections. One more in Heller is one of the main causes of the increase in gun violence in our country. All these happened because the "majority" of the Supreme Court justices failed to abide by the demands of the preamble.
International treaties like the Paris Accord are agreed to unanimously by all countries of the United Nations even if some of them are mutually conflicting about other disputes. Why cannot our justices have the magnanimity to give up their individual choices for the “general Welfare” of the people that sent them to the court? Honest differences of views among intelligent people need not be eliminated provided they are really honest and also not to be imposed on millions of people for decades or forever. They can be made less harmful by developing a consensus.
Adding some justices to the court will not be useful. They will continue to issue decisions with flimsy majority. They will have no incentive to convince their colleagues to agree. The judges are unwilling and/or unable to discuss the issues patiently among themselves to arrive at a unanimous decision about matters affecting lives of millions of people forever or for long periods. They behave as if they are discussing religious or spiritual matters such as existence of God about which people can have differing personal opinions.
It is therefore desirable that the reform requires that all judgements must be issued unanimously by all the justices of the court regardless of their personal party affiliations.
We select these justices for the Supreme Court so that the nation gets the benefit of their intelligence, education and expertise in significant legal matters facing us all. This purpose is defeated when they stick to their personal choices instead of developing a synthesized jurisprudence in consultation with each other. They were given lifelong positions so that they would not be influenced by the partisan politics of the Congress. However, the time has come to protect the people from the party affiliations of these eminent learned justices certified by top ranking universities. This calls for introducing term limits for Supreme Court justices. Also, lifetime tenures for the Supreme Court justices are not specified by the Constitution.
When the Constitution was written, the longevities of Americans was much shorter than it is at present. There is therefore no need to stick to the lifelong positions of supreme court justices. Their unlimited lifelong appointments amount to gerontocracy instead of democracy.
Which persons does the word "People", who ordained and established the constitution, refer to? Only those who signed that draft? Does it exclude those born later? If yes, then isn't our democracy really a "ghostocracy"? If no, does it include everyone from 1789 until this day or does it include only those currently alive? To what extent should we stick to the letter of the constitution while ignoring the ideals proclaimed as the purpose of the constitution? If there are some mutually contradictory provisions, should not we accept the one that better suits the preamble?
-----XXX-----