

Supreme Court & Court Justices
Many US Citizens don’t understand that the 3 branches of US Government are actually referred to by number. As the two houses of Congress are those for representing the American people, they are referred to as the 1st Branch. The President and his administration is the Executive Branch or the 2nd Branch and the Judicial Branch or the Supreme Court is the 3rd Branch. I took on the 1st Branch in Part I of this series; in Part II, I will now take on the 3rd Branch and I will leave the 2nd Branch for the last part.
The Judicial Branch of the Federal Government is also sometime referred to as the “Invisible Branch” as few Americans ever have any direct contact with the 3rd Branch. However, its decisions can have a profound affect on all of us. Whether it is in regard to a woman’s right to choose, changes in our environmental rules or the education of our children, the Federal judges can touch each one of us just as closely as we embrace an individual member of our own family.
Up until the last few decades, the Supreme Court had not been given the close political attention that it is given today. A century ago the Supreme Court was looked at as being virtually devoid of values and somewhat as a mechanical tool that only had the responsibility to be objective, or even neutral at times. Its job was to just review issues or laws to confirm that it followed the strict rules as established by our forefathers within the US Constitution. That definition of a Justice of today’s Supreme Court has changed significantly.
A well respected law professional and researcher of the Chicago Law School, Professor Cass Sunstein, has written in his book: Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, that there are basically four different philosophies in which current judicial thinking can be categorized. These categories are defined as Majoritarianism, Perfectionism. Minimalism and Fundamentalism. Listed below are the definitions of these philosophies and some ideas of where some those on the court are today.
• Majoritarianism:
This philosophy embraces the concept of following the will of the majority. If the majority of the voters were to support same-sex marriage or affirmative action, the court should not intervene to argue against those ideas. Past Justice Oliver Wendell Holmes was of this philosophy. However, even though this philosophy is becoming very popular among lawyers and law professors, there are no majoritarians on the current Supreme Court Bench.
• Perfectionism:
The perfectionist follows the exact text of the Constitution in a way that reflects the justice’s own concept and belief of freedom of speech, presidential powers, etc. Former Chief Justice Earl Warren was a perfectionist about a person’s rights as he interpreted the Constitution. Current Justice, John Paul Stevens is the only possible sitting perfectionist judge.
• Minimalism:
Minimalists could also be called “skeptics” as they do not believe in getting involved unless the issue or law has a very solid background in traditions and practices. They can be liberal or conservative, as previous Justice Felix Frankfurter who was a minimalist from the left and Justice Sandra Day O’Connor was one from the right.
• Fundamentalism:
The fundamentalist believes that the Constitution must be interrupted in its “original understanding”. If the Constitution did not originally prohibit an action (i.e.: discrimination due to race, sexual orientation, child labor, etc.) then there is no authority for action by the Supreme Court today. Justice Antonin Scalia is considered an excellent example of a fundamentalist.
Starting with Richard M. Nixon; he understood that as a Supreme Court Justice holds his position for life, it was to all the conservatives’ best interest to make sure the Court’s philosophies were in line with Nixon’s fundamental conservative philosophy. Richard Nixon and his GOP successors have continued working to make sure the make-up of the highest Court in the land is not a balanced Court of both liberals and conservatives but instead is always tilted in the direction of the far right conservatives. They have been very successful with this effort and with one more Republican President, they could set a radical conservative direction of the Court for decades to come.
In order to emphasize this point, political author and previous Nixon White House Counsel, John W. Dean, has written the following about Federal Court Judges: “If you show me an Appellate Judge who says he or she never lets his or her politics or personal beliefs influence their decision making, I will show you a judge who is either a liar or without sufficient intelligence to be on a higher bench (the Supreme Court). Of course, good judges do try to keep their objectivity, but it is naïve to believe that this is completely possible on anything other than the most mundane, inconsequential, or routine judicial business.”
Richard Nixon was the first candidate to make major use of his potential Supreme Court appointees in his political speeches when running for the US presidency in 1968. For the past 40 years, Presidents Nixon, Reagan and both of the President Bush’s (with the help of the GOP led Congresses) have worked hard to seat “strict conservationists” or “law & order” Judges. Only Presidents Gerald Ford and Bill Clinton chose to not use the appointments in this manner in their political campaigns. President Reagan on the other hand, took Nixon’s lead and proceeded to not only use his appointments for setting a highly conservative Supreme Court, he also began placing solid conservative judges throughout the Federal Judiciary Courts both high and low. Presidents Bush I and Bush II continued this process with a vengeance.
Richard Nixon actually began preparing his case for more conservatives on the Supreme Court bench even prior to his 1968 election. He achieved this by working off-line with the Senate Republicans and convincing them to filibuster President Johnson’s choice for Chief Justice (before Johnson left office) of Associate Justice, Abe Fortas. Judge Fortas eventually withdrew his name for nomination and Earl Warren agreed to stay on as Chief Justice for the end of that Supreme Court term which ended in 1969. This allowed President Nixon the opportunity to fill Earl Warren’s Chief Justice position instead of it being filled by President Lyndon B. Johnson.
Since this process was begun by Nixon, the promising of nominating the judges with conservative or liberal tendencies is now always included in the campaign rhetoric of both parties. Unfortunately, it is just one more way to emphasize that the politicizing of the Supreme Court is just as much as a part of today’s political campaigns as the current Red and Blue designations given to the 50 US states. Since the Supreme Court awarded the US Presidency to George W. Bush, the Supreme Court can no longer be looked at as the “neutral party” that just decides based on whether a decision or law follows the rules of the Constitution.
The real issue for the future is going to be decided by which party wins the US Presidency in 2008. If another Republican is to win in ’08, that President’s new Supreme Court appointees will make the high Court the most radical judicial conservative Court in US history. As it is today, with that type of Court, presidential powers will not be part of the high Court's requirement for providing a judicial check and balance system. Civil liberties and personal rights will be at the bottom of the Court's priority list. Based on past performances, they will focus on the needs of the religious right, business conservatives and going after overturning Roe vs Wade.
Regardless of your feelings toward the candidates, any of the current Democratic candidates would be acceptable for what is needed to start getting the make-up of the Supreme Court back to a better balance of liberals and conservatives. Think about it.




