The U.S. Supreme Court has completed its current term, issuing conservative majority decisions that continue to strip away rights we have relied on. Using the excuse of “originalism” to profess that the only rights that can be guaranteed by the Constitution are those that are “deeply rooted in this Nation’s history and tradition,” the court has struck down laws designed to provide protections to those who have been denied rights, which denials were “deeply rooted” in our nation’s history and tradition.
Many of us have reached a point of desperation with the court, given that the Constitution gives the justices lifetime appointments. But if we look to the reasons why the Framers of the Constitution provided this tenure, it becomes abundantly clear that the behavior of the current conservative majority is utterly inconsistent with how and why the Framers wrote the Constitution as they did. The great paradox is this: The conservative justices are relying on a dogma of their own creation, and when viewed through that very lens, they have not complied with their constitutional obligations to serve as justices. As such, they can be removed.
We can find what is “deeply rooted” in our history and tradition relating to the creation of the Supreme Court (and the federal court system) in The Federalist Papers 78 and 79, written by Alexander Hamilton. Hamilton begins by observing that the tenure of judges “chiefly concerns their duration in office, the provisions for their support, and the precautions for their responsibility.” This is accomplished in the Constitution by a lifetime appointment, a guaranteed salary and the requirement of “good behavior.”
The primary purpose of these provisions is the independence of the judiciary from other influences. Hamilton states that “nothing can contribute so much” to the judiciary’s “firmness and independence as permanency in office,” and this provision of the Constitution acts as “the citadel of the public justice and the public security.”
However, to retain their lifetime appointment, judges must “behave properly,” which is provided in the Constitution as a standard of “good behavior.” Hamilton described this standard as “the best expedient … to secure a steady, upright, and impartial administration of the laws.” He also observed that the judiciary should have “no direction either on the strength or of the wealth of the society, and can take no active resolution whatsoever.”
As to salary, the Constitution provides a guarantee that the compensation to judges cannot be diminished during their service. Said Hamilton, “nothing can contribute more to the independence of the judges than a fixed provision for their support.” And he observed: “In the general course of human nature, a power over a man’s subsistence amounts to a power over his will.”
Thus, the Framers of the Constitution gave judges lifetime appointments assuming good behavior and a guaranteed salary to ensure they would act independently and impartially, with eminent quality, and without the power or the wealth of others influencing their exercise of judgment. This is what is deeply rooted in our nation’s history.
This constitutionally structured idealism has been destroyed by the conservative majority, which has replaced independence and impartiality with partiality, politics and partisanship, stemming directly from figurative if not literal debts owed on account of big money investments made by conservative action groups and individuals instrumental in putting these justices on the bench, or otherwise providing direct financial favors to the justices. This is not “good behavior.” The justices are “legislating” the agenda of their donors by taking away rights given by laws that their donors are unhappy with.
In providing for independent judges, Hamilton cautioned that the “pestilential breath of faction” could “poison the fountains of justice.” The foul breath of the conservative majority justices has been unleashed, and the antidote to the poisoning of our fountains of justice is their removal.
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