Do Your Job (Part 2 of 2)
- Courts should not have carte blanche power; Congress needs a check to determine how Courts function and process.
- A speedy trial should be a right enjoyed by everyone involved in any situation, not just the accused in criminal trials.
- Failure to grant these rights, any rules set up by Congress, or any orders by the President to hear certain cases should be grounds for impeachment of judges.
If the Courts could do whatever they wanted, they would be a single endpoint with complete control of the country. No, as there are already Constitutional methods for the other Branches to hold the Judicial Branch in line, they must be expanded to make sure the Courts do not step over it.
By Amendment to the Constitution of the United States, Article 3, Section 5, Clause 6 shall be added:
Congress shall have the ability to create law that governs the proceedings of the Supreme Court and all inferior federal courts. This includes, but is not limited to, designating where trials may take place, how long a person may be detained before trial, how much time may be spent on arguments, and how long trials may proceed.
We have often asked in this section: where do the rules of the courts come from? Why is there a prosecution and defense? Why does court happen at certain times and in certain places? Why are juries a certain size? Why is the appeals process the way it is? Why does it take years to work through the court system?
The answer is two-fold. First, Congress — and Congress alone — by Article 1, Section 8, Clause 9 has the ability “To constitute Tribunals inferior to the supreme Court”. Therefore, the setup of what each court can do and how the appellant system exists is a matter of law. But all the processes have been decided by the courts themselves — with some law that has come up over time to enforce those unilateral decisions. But nothing can force the courts to do anything. Much like with Congress itself, the courts have created their own rules and regulations that slows down the wheels of justice. This is despite the fact the sixth Amendment specifically guarantees a “speedy and public trial”. But that Amendment only mentions criminal cases, so perhaps we need some adjustments:
By Amendment to the Constitution of the United States, Article 3, Section 4, Clause 3 shall read:
In all criminal, civil, or other judicial prosecutions, the accused and the accuser shall enjoy the right to a speedy and public trial, by an impartial jury of judges of the State or Territory and district wherein the crime shall have been committed, which district shall have been previously ascertained by law <strike>, and</strike>. Further, the accused is to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Here, we grant those speedy and public rights to both the accused and the accuser — for that person (using person to mean an individual, corporation, group, federal agency, or any other definition) may not want to spend years in the process either. At the same time, we have extended this to be for all types of cases so that the same rules apply evenly.
But what does “speedy” and “public” mean? Well, those are question or law, and only Congress can answer that. The afore created Amendment will now explicitly give Congress the ability to make decisions on how the courts should function so that they cannot go off on a rogue process. If Congress says each witness has 10 minutes to testify or that the prosecution and defense will be held on clock like in chess, then that is their prerogative. In the same vein, if Congress says that once someone has been sued civilly or arrested criminally that the trial must begin within a week, then that is what should happen. Just as Congress is to work for the people, so, too, are the courts supposed to do the same. The Supreme Court is still inferior to the people of the United States, and the will of the people should be reflected in how they operate.
This Amendment is open and gives great leeway, but also allows significant change. If something is not working out, the system can be updated easily by Congress. Just as the Executive Branch should not be held accountable to itself, nor should the Judicial Branch. With this specific Amendment, the courts would no longer be able to run (or slowly trot) amuck and expansive judicial reform can happen much more easily.
The Legislative Branch is not the only one who should have powers over the courts, as should the Executive Branch:
By Amendment to the Constitution of the United States, Article 3, Section 5, Clause 7 shall be added:
The President of the United States may order the Supreme Court or the appropriate designated inferior federal court to start a trial within the timeframe decreed by Congress when the court is in session, so long as the Supreme Court has not already ruled on the issue at hand.
As an expansion from the previous Amendment, there are times when the courts just sit on cases because they do not want to get to them in the current session. This can be massively frustrating for those who created the laws and those who enforce the laws because they have done their part while the last step in the process is refusing to do theirs. These types of delays can go on for years. Thus, should Congress choose, they could give the President the ability to make sure a case gets on the docket within, say, 30 days. That way, if the issue were pressing or involved a Constitutional question that must be resolved, the process could be pushed ahead within whatever other limitations Congress creates for the courts.
At the same time, there have to be limitations. If the Supreme Court has already ruled on a particular subject the President cannot force his hand here. For instance, the Supreme Court has already ruled that abortion is legal and Constitutionally protected within the United States. Now, the changes we made above will have forced Congress to write law making it so instead of only having a Court decree, but we have to deal with the here-and-now and all that came before such an Amendment existed. Since that is the law of the land, each time a State passes an anti-choice law, the federal courts immediately put it on hold and the appellant courts rule in favor of the plaintiffs fighting these laws. The decision has been made and the law is clear.
The hope of these groups is to make it to the Supreme Court and re-raise the discussion again. And let us be clear: there are times when getting back to the Supreme Court is necessary to overturn poor decision and this is a function we want to maintain. For instance, in 1944 the Supreme Court upheld the Constitutionality of the Japanese American Internment Camps in the case of Korematsu v. United States. This precedent has not been officially overturned to this day and it is technically still part of the books — although further laws, reparations, and the decision in 2019’s Trump vs. Hawaii say this case was decided incorrectly (while at the same time using much of the precedent of that trial as reasons for ruling in partial favor of the President).
Over the years, the Supreme Court has reversed itself at least 230 times, and perhaps over 300 times depending upon how people interpret some arguments. Either way, it is around just 2% of all cases ever heard. Yet, many of these are even more amazingly disturbing, and not just with a lens of hindsight. In one example, in 1883, the Supreme Court ruled against Tony Pace for the crime of being a black man romantically linked with a white woman in the State of Alabama where the State created a law that said the two could not be married (the argument being that since the law applied equally to black and white people that it was not discriminatory). It took until the 1967 case in Loving vs. Virginia for the Supreme Court to overturn their own handiwork and say that State-sponsored racism cannot be argued as an interest of the State, no matter the “fairness” of the application of the law.
These are just a couple of examples of when the Supreme Court has and should revisit prior decisions and overturn them. Just because it is the moral, right, and correct thing to do, though, does not mean that the court should be forced to hear it again and again. If this is the first time an issue is coming before the Supreme Court, the President should have a right to make sure it is heard and heard in a timely manner. Once that has happened, though, only the Supreme Court itself should have the ability to decide if they will rehear an issue. This makes it so the same issue cannot be politicized by the Executive Branch and force the courts to do the work they have already done.
Now, with turnover in the Supreme Court happening every five years, a Congress not dominated by a single party, a President that must compromise and collaborate with others, and time limits in government for all of these groups, the harm and ability to revisit issues should come up naturally on its own in regular cycles. Still, there may be abuse within the Judicial Branch itself, and there needs to be an enforcement mechanism when the Courts are in bold defiance. Luckily, we already have a mechanism to do that that just needs a bit of expanding:
By Amendment to the Constitution of the United States, Article 3, Section 5, Clause 8 shall be added:
Judges on the Supreme Court and inferior federal courts shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, abusing the powers granted by the Constitution and law, failure to follow the procedural law as set by Congress, failure to start a trial when ordered by the President, or other high Crimes and Misdemeanors.
The wording here is almost exactly the same as what is written for the Executive Branch, with the additions of abusing power, failure to run as Congress has set by law, or failure to start a case under the direction of the President. The Constitution already covers that impeachment can only be started in the House of Representatives and tried in the Senate, and the only punishment is removal from office if voted guilty. This gives the Legislative Branch the ability to fully enforce all these new powers granted by the Amendments, but still maintain a high threshold to do so.
TO BE CONTINUED…