OPTIONS. There are three means by which the unconstitutional rulings by the current Supreme Court could be lawfully corrected: (1) thru new legislation, or (2) & (3) thru changing the composition of the Court (either by adding 4 addition Judges or by removing and replacing the rogue Judges) followed by obtaining reconsideration of said rulings by the reconstituted Court.
(1) Corrective legislation is currently not achievable because the Senate majority is unable to muster the unity and will to reform the filibuster. Moreover, even if the Supreme Court’s rogue rulings were reversed by legislation; there is a strong possibility that said Court would nullify said legislation thereby bringing the effort to naught.
(2) Expanding the Court could only provide temporary protection against future rogue rulings, because future Republican control of the Senate and Presidency (a likely event after the 2024 election) could further expand the Court to restore a rogue-Judge majority.
(3) “Remove and replace” would maintain the current size of the Court, make it more difficult for Republicans to restore domination by rogue Judges, and provide more legitimacy for the reconstituted Court than the other option for reconstituting it. Consequently, “remove and replace” is the best option.
REMOVALS. The Constitution states and/or implies the procedures for removals of federal government office-holders as follows.
1. The Constitution explicitly provides two different procedures for removing misbehaving office-holders: one applicable to the legislative branch (Congress), and another applicable to Executive-branch office-holders (and possibly Judges) who have committed specified crimes. It does not explicitly provide a procedure or procedures for removals of office-holders in the Executive and Judicial branches in cases of noncriminal misbehavior (or other dissatisfaction with their performance); however, procedures in those cases are implicit in the Constitution.
2. Pursuant to Article I, section 5, removal (for cause) of a member of Congress is thru expulsion by a 2/3 vote by the membership in the targeted member’s legislative chamber.
3. Pursuant to Article II, section 4, the procedure for removal of “President, Vice President, and all civil Officers”, in cases of “Treason, Bribery, or other high Crimes and Misdemeanors”, is by impeachment (pursuant to Article I, section 2, [2]) by majority vote in the House of Representatives and conviction (pursuant to Article I, section 3, [6]) by 2/3 vote in the Senate.
4. It is implicit that the President and Vice President, as office-holders elected by and accountable to the electorate, cannot be removed except thru the aforementioned impeachment process or defeat in the next quadrennial election. (The President can be suspended, but not removed, pursuant to procedures provided in the 25th Amendment.)
5. Pursuant to Article III, section 1, Judges “shall hold their Offices during good Behavior”. Although not explicitly stated, it is clearly implied that Judges shall be removed upon engaging in bad behavior. Article III does not state a procedure for such removal. Therefore, that procedure or procedures must be ascertained by logical inference from what is stated elsewhere in the Constitution.
6. >Officials appointed by the President with the advice and consent of the Senate, as unelected appointees, can be (and have been) removed: by means other than the impeachment procedure, and for reasons other than the crimes specified in Article II, section 4. That procedure is implicitly inferred by the procedure thru which they are appointed.
7. Pursuant to Article II, section 2, the appointment procedure (with respect to “Ambassadors, other public Ministers and Consuls, Judges […], and all other Officers […]”) is thru nomination and appointment by the President “with the Advice and Consent” (by majority vote) “of the Senate”. In the absence of any stated procedure for the removal of Presidential appointees for cause other than the crimes specified in Article II, section 4; by inference, the procedure for removals of said appointees must be thru reversal of the appointment procedure. Consequently, two removal procedures are Constitutionally applicable for Presidential appointees.
- For removals in cases of “Treason, Bribery, or other high Crimes and Misdemeanors”, the impeachment procedure, which does not require consent of the President, certainly may be utilized.
- For removals in cases wherein the impeachment procedure is inapplicable (as with non-criminal misbehavior) or is not preferred for other reasons, the logical inference is that said procedure should be a reversal of the appointment procedure, which is to say by proposal of the President with consent (by majority vote) in the Senate.
8. Legality. Historically, the power of the President to remove Presidential appointees has been an issue in controversy.
- Congress, in the Tenure of Office Act (1867) and in an 1876 Act specific to postmasters, required Senate approval for the President to remove Senate-approved Executive branch Officials. However, the Supreme Court (in a split decision with 3 dissents) ruled, in Myers v. United States (1926), that the President may unilaterally remove Executive Branch Officers sans Senate consent. Subsequently, in Humphrey’s Executor v. United States (1935), the Court narrowed that ruling so that Officials occupying quasi-legislative and quasi-judicial positions could be removed only thru procedures set by Congress, thereby limiting the President’s power to unilaterally remove Senate-approved Officials to those who are directly subordinate to the President.
- Because Judges serve in a separate and independent branch of government (established by Article III); it is implicit, and has always been accepted, that the President lacks the power to unilaterally remove them. However, it is entirely consistent with the Constitution, to recognize the power of the first two branches (Legislative and Executive) to hold Judges accountable to their oaths (required by Article VI) by removing misbehaving Judges thru Presidential proposal with consent of the Senate. It makes no sense to require a 2/3 Senate vote to remove a misbehaving Judge when a mere majority is sufficient to appoint said Judge. Could the Courts rule such removal procedure unlawful? Because of their conflict of interest, the Courts would lack standing to decide the issue. Consequently, the power to make the removal of Judges, thru Presidential proposal and consent of the Senate, procedurally operational rests with the President and Senate.
9. Noncriminal misbehavior is neither covered by Article II, section 4 nor explicitly addressed elsewhere in the Constitution. Cases wherein such misbehavior would justify removal of a Judge (upon proposal by the President and with the consent of the Senate), includes judicial rulings by which a Judge substitutes his/her personal prejudices and preferences for the actual provisions of the Constitution and/or other valid laws, that is to say cases wherein the Judge abuses his/her power and thereby violates his/her oath (Article VI) by engaging in “judicial activism” and “legislating from the bench”.
RULINGS IN NEED OF CORRECTION. Rogue Judges on the current Supreme Court have perpetrated multiple rulings which violate their oaths to rule in accordance with the actual content of the Constitution and other valid laws. Some examples, far short of a complete list.
1. Using the “major question” pretext, six Supreme Court Judges, in West Virginia v. EPA (2022), nullified public interest regulations clearly authorized by statute, namely with respect to the regulation of climate-harming power-plant CO2 emissions. Said Judges “justified” so doing with the implausible assertion that the relevant statute is insufficiently specific in granting, to the regulatory agency, the power to make such regulation.
2. Using an inherently arbitrary and abuse-prone “originalism”, five Supreme Court Judges are cherry-picking historical events in order to create their pretext for nullifying civil and human rights, rights explicitly and/or implicitly provided by the Constitution. Case in point, in Dobbs v. Jackson Women’s Health Organization (2022), said Judges ignored the historical fact that abortion prior to quickening (4 months) was a right accepted, allowed, and commonly practiced by women at the time of enactment of the Constitution and its 9th Amendment which implicitly prohibits state action to “deny” unenumerated “rights” “retained by the people”. Moreover, in permitting states to impose reproductive bondage upon pregnant women by compelling them to carry unwanted pregnancies to term, said Judges ignored the 13th Amendment prohibition against “involuntary servitude” and the 14th Amendment prohibitions which disallow any law which would “abridge the privileges or immunities of citizens” or “deprive any person of […] liberty […] without due process of law”. Even if, as the rogue Judges assert, the foregoing Amendments, when enacted, were not intended to protect the rights of women; certainly, the enactment of the 19th Amendment, which provides for women to be full citizens, extended the protections in those Amendments to women.
3. Using an arbitrary and implausible presumption of state-legislature innocence in their partisan and racially discriminatory redistricting decisions despite their histories of abuse, five Supreme Court Judges ruled, in Abbott v. Perez (2018), that anti-democracy gerrymanders, which give voters of one political Party and/or race disproportionate political power, in violation of the 1965 Voting Rights Act and of the 14th Amendment prohibition against denial of “the equal protection of the laws”, cannot be nullified by the federal Courts.
4. Using a concocted extension of 1st Amendment rights (free speech and religious liberty) to business corporations to which the Constitution never intended said rights to apply; rogue Supreme Court Judges, in accordance with their pro-business and religious biases, nullified valid regulatory laws thereby violating Article I, section 8 which gives Congress the power to “regulate Commerce”, a power which must be construed in accordance with the relevant purpose of the Constitution as stated in its Preamble, namely “to promote the general Welfare”. Said corporations, the existence of which is nowhere acknowledged in the Constitution, are artificial entities which exist only thru the granting of their Charters. Said Charters are granted by the state and specify the powers and purposes of said corporate entities. Those specified purposes involve commerce; they do not include voting or religious activity, activities in which only human persons can engage. Moreover, it is implicit that the owners of said corporations, being shielded from liability for the wrongful acts of said entities, have no right to extend personal rights (free speech and religious liberty) to said entities. Cases in point: Citizens United v. Federal Election Commission (2010) which gives corporations unlimited campaign-spending political speech, and Burwell v. Hobby Lobby Stores, Inc., which permits some corporations to claim religious objection in order to refuse compliance with a legally valid healthcare mandate to provide specified healthcare benefits for their employees. Said Judges purport to being “originalists” when it comes to depriving people of rights actually provided by the Constitution, but not when creating, for corporations, rights which do not exist for them in said Constitution.
5. It is not only in recent history that Supreme Court Judges have made rulings wherein they substituted their personal prejudices for the Constitution. Notorious past examples include: Plessy v. Ferguson (1896) decided 7 to 1, Buck v. Bell (1927) decided 8 to 1, and Dennis v. United States (1951) decided 6 to 2. In those cases, victims and Constitutionalists lacked the political power to overcome the consequent injustices. Currently, the Democrats, who purport to oppose the abuses of judicial power by the current six Republican appointees to the Court, control the Presidency and possess the power to rule both chambers of the Congress. Consequently, if they can muster the unity and the will, they possess the power (the filibuster being inapplicable to appointments of Judges) to remove and replace those rogue Judges and then obtain reconsiderations on the Court’s wrongful rulings.
WHAT TO DO. In order to correct the anti-democratic abuses perpetrated by the Republican-appointees on the Court, it will be necessary for activists to think outside the box and to induce the Democrats to take bold action.
1. Necessary measures.
(1) Organize a broad coalition (of the many constituencies harmed by the Court’s various unconstitutional rulings) to stage massively huge protest rallies to demand the removal and replacement of the rogue Supreme Court Judges (mass protest actions which should be achievable given the widespread popular outrage over said Supreme Court rulings).
(2) Persuade Senate Democrats to depoliticize federal Court appointments: by creating a Federal Judicial Commission (as described in 2 below) to make recommendations for appointments and removals of federal Judges.
(3) Persuade the President and Senate Democrats to then use said Commission to remove and replace the misbehaving Supreme Court Judges.
(4) Persuade the reconstituted Court to reconsider and reverse the wrongful rulings of the current rogue Judges (most urgently in West Virginia, Dobbs, and Abbott).
(5) If predominantly Republican gerrymanders cannot be reversed before the 2022 Congressional elections, induce Democrats in the House to refuse to seat as many of the elected Republicans as are disproportionately elected due to their unconstitutional partisan gerrymanders and to order their states’ elections to be repeated with newly drawn districts which are compliant with the VRA and the 14th Amendment, districts to be drawn so as to produce representation proportional to each party’s share of the statewide vote).
None of the foregoing actions require abolishing or reforming the Senate filibuster. At least two Democrat Senators refuse to even reform the filibuster so as to prevent its use against legislation to enforce human and civil rights provided by the Constitution; they evidently delude themselves that Senator McConnell and his Republicans will preserve it when it stands in their way when they regain a Senate majority (which is very likely if Democrats continue to fail to deliver for their base constituencies).
2. The proposed Federal Judicial Commission should be formed as follows.
- Said Commission will be composed of a set number of independent Constitutional law experts, possibly to be recommended by an appropriate body to be established by the American Bar Association [ABA]. It will be the responsibility of the Senate, probably in consultation with the ABA, to create said Commission.
- Said Commission will select and maintain a sufficient panel of qualified candidates for appointment as federal Judges, a panel from which the President would be required to select his appointees to Judicial vacancies. (The President, as well as Senators, could, of course, propose candidates for consideration by the Commission.) Only candidates, who satisfy the following criteria, will be deemed qualified. (1) They must be genuinely committed to uphold all of the human and civil rights (including unenumerated rights) provided to humans by the Constitution. (2) They must be committed to interpret the Constitution: beginning with the text, but recognizing that deviations from the text will be necessary in contemporary circumstances which the framers did not anticipate, insofar as their current counterparts would reasonably be expected to modify said text as appropriate in order to serve the purposes of the Constitution as stated in its Preamble and in its provisions of civil and human rights.
- The Senate will adopt rules: that it may not consider any Judgeship nominee who has not been vetted and approved by the Commission, and that it will provide prompt consideration and decision with respect to any properly vetted Presidential nominee.
- Whenever a credible complaint of misbehavior by a sitting Judge is presented to the Commission, it will investigate and make a finding. If it finds, after providing the accused Judge with an opportunity to answer the pertinent accusations, that the accused Judge is guilty of misbehavior justifying removal; it will recommend that action. Thereupon, the President, will be expected (though not Constitutionally required) to propose to the Senate that the subject Judge be removed. If the Senate concurs, said Judge will then be removed.
3. What if removed Judges or their supporters resist? Then the President, as Commander-in-Chief in control of the coercive state power, can and must employ that power to induce compliance. Mass protest rallies in support of the foregoing “remove and replace” option will make it much easier to effectuate it.
4. With their bold campaign promises, and with their incapacity and failure to deliver, and with their longstanding subservience to big-money special interests to the detriment of much of their disheartened base constituencies; Biden and his Democrats, as it stands currently, are likely to lose their potential to control the federal government, in the upcoming 2022 and 2024 elections. Moreover, they appear oblivious to the adage “use it or lose it”. Trump Republicans, where they control government, exhibit no such hesitation. With their current policies and given the near-certain 2022 election outcome (Democrat loss of its House majority and doubt as their holding their ineffective majority in the Senate), the Democrats have everything to gain and nothing to lose by taking the bold action proposed herein.
5. Given how weak-willed and faint-hearted so many Democrat politicians are, persuading them to take the bold action, which is necessary, may be a long shot. That could be the case with respect to the any of the aforementioned three options. Nevertheless, for progressive activists not to demand and seriously press for bold action is not an acceptable option.