Can the Senate Kill the Supreme Court, or Is That just a Phantom Menace?

      This Halloween, a specter is haunting the Supreme Court: the specter of destruction by the Senate. At least, that’s what a recent article on the “Federalist” website claimed, with the mind-bending assertion that the Court could be eliminated completely, simply by the Senate’s refusal to appoint new Justices to replace departed ones:

As a matter of constitutional law, the Senate is fully within its powers to let the Supreme Court die out, literally.

Id. However, this “fantastic beast” of a claim may come more from Cloud-Cuckoo-Land than from the realm of reality.

I. The Supreme Court: An Article III Commandment, Not a Suggestion

     First off, the idea that one branch of the Government can just casually exterminate another branch defies common sense. It also defies the idea of the equality of the three branches, legislative, executive, and judicial.

     Second, although the Senate has a prerogative not to appoint nominees in general, i.e., to refuse a specific nominee: that privilege doesn’t seem to allow them to fail the Constitutional duty to keep the Supreme Court alive in the first place. As Article III, Section 1 of the Constitution declares,

The judicial Power of the United States, shall be vested in one supreme Court . . . . The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior[.]

Id. There aren’t any colorful “maybes” or “outs”, such as, “The judicial Power of the United States, shall be vested in one supreme Court, unless someone makes it fizzle out, then bye bye judicial power! And bye bye to Justices holding their Offices!!” Indeed, the internecine warfare that would occur if one branch of the Government could snuff out another branch, put a “hit” on it, does not seem contemplated by a document with the majesty of our Constitution. Checks and balances are one thing; body-checking a branch of the government to death is another thing entirely.

II. A Smaller Supreme Court Doesn’t Mean No Court at All; or, the Senate’s Duty to Keep at Least One Justice on the Court

     True, the Senate could let the Court get smaller and smaller: e.g., if Hillary Clinton puts forth no acceptable nominee, it might be constitutional—even if imprudent and obstructionist—for the Senate to let the number of sitting Justices dwindle to 7 or even fewer. (See Noah Feldman on Bloomberg, Obama and Republicans Are Both Wrong About Constitution,

All the Constitution requires is that there be a Supreme Court. . . .

     . . . .

. . . But the size of that court is left undefined. In theory, I think, it could consist of a single judge. The interpretation of the Constitution would rest his hands. [sic] You could even call him Anthony Kennedy.

Id.) But merely slimming down the Court doesn’t mean letting the Court actually die.

     Thus, as a reductio ad absurdum: let’s say seven of the current Justices are abducted by renegade Martians or Sith, so that Ruth Bader Ginsburg is the only Justice left alive, and she constitutes a Supreme Court consisting of one person (!!), with American justice “resting in her hands”. She lives to the ripe old age of 130 (!!!), but eventually is “promoted to glory” or “attains her heavenly reward”, as the euphemism goes.

     It seems that at that point, with no one left on the Court, the Senate would have to approve somebody, as a matter of good faith, to follow the Constitution’s clear order that “The judicial Power of the United States, shall be vested in one supreme Court”. (If the Justice turned out to be a bum, the Senate could…use another power it has re the Court, and impeach him or her for a refusal to show “good Behavior”, U.S. Const. art. III, § 1. So there’s no excuse for not appointing at least one Justice to the Court, on the pretext that the Justice may not be “perfect”. Who’s perfect?)

     But according to “The Federalist” article supra, the Senate could just let the Court die off. This doesn’t seem very patriotic, among other things. ...Incidentally, speaking of “Federalist”, is there anything in the actual Federalist Papers, written largely by that guy with the Broadway musical named after him, that would support the Senate kung-fu-ing the Supreme Court to death?

III. Al Hamilton: Probably Not for H-Bombing the Court

     Let’s see, first off, The Federalist No. 76, quoted in What Did the Federalist Papers Say About Supreme Court Appointments?:

The person ultimately appointed must be the object of his [the President’s] preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed[.]

, id., and The Federalist No. 78,

[F]rom the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

Id. So the Fed Paps say in #76 that the Senate should generally defer to the President’s nominations, and in #78 that we should be wary of other branches’ attempts to “overpower[ ]”, id., the Court. But isn’t destroying the Court the ultimate form of “overpowering” the Court? What would Hamilton say?

     Cf. also Shun a President’s Supreme Court Nominee? Alexander Hamilton Would Not Be Pleased (making similar points, and including snappy photo of Lin-Manuel Miranda). In all, someone publishing in a venue called “The Federalist” might want to consult the actual Federalist Papers, to see if dropping an atom bomb on the Court is something that funky founding father Al H would’ve been down with.

IV. The Senate Can Pass Over Court Nominees—but Not Indefinitely or Indiscriminately

     The present author is somewhat neutral, by the way, as to the matter of appointing Merrick Garland to the Court or not; if Mitt Romney were President and wanted to appoint Ted Cruz to the Court, who thinks the Democrats would be enthusiastic to appoint him? And if Democrats are not enthused about Cruz, how can they blame Republican senators for not wanting to appoint one of Obama’s nominees? However, for any Senate to refuse even to consider any of a particular President’s nominees, smacks of obstruction. And for any Senate to try to kill off the Court, smacks of insanity.

V. Conclusion: We Pay the Senate to Restock the Court, so the Senate Should Do Its Job

     The present author doesn’t especially favor big government, but if we’re paying with our taxes for government, the government might as well do something. …If you wanted to argue that a branch of the federal government be killed off, you might want to start not with the Court, but with Congress (including the Senate), or the Presidency, whose inhabitants have to be elected by everyday Americans. (What if no one voted? No one would be elected, and the branches of government in question would tend to die off. And could average Americans really be forced against their will to vote for Congressional or Presidential candidates at all??)

     But the Court is appointed by the President, i.e., by someone who’s paid to do a job. (Your average voter is not paid for casting a ballot.) The President should do what she/he is paid to do.

     And the Senate too is paid to do a job, that is, considering Supreme Court nominees. For the Senate not to do that job, and let the Court die, is the kind of ineffective big government we really don’t need. (FDR and Phyllis Schlafly promoted big government by endorsing Court-packing, the needless expansion of the Court; but at the other extreme, to wipe out the Court when the Senate is being paid to do its job and restock the membership of the Court, is also ineffective big government.) And to waste time making spooky arguments that one branch of the Government can whack another at will, may be wackier than anything else you see this Halloween—especially when such arguments may not have a ghost of a chance of withstanding serious analysis.

(Cross-posted, with edits, at Casetext)

October 29 saintlist

     Saints John of Capistrano, Anthony Mary Claret, Daria, Bean, Frumentius, Jude Thaddaeus, and Narcissus, please pray for us.

Funk nite at the BL pt. LXIX: "If 6 Was 9"

     Tonite, for the 69th installment of Funk Nite, we appropriately have "If 6 Was 9" by Jimi Hendrix (from the "Easy Rider" soundtrack):

     Funk it up!

RIP Jack Chick and Tom Hayden, twins in rebellion

     Jack Chick, the comic book evangelist Tom Hayden.

     Tom Hayden, the fundamentalist leftist Jack Chick.

     RIP twice.

October 22 saintlist

     Saints Gerard Majella, Ignatius of Antioch, Luke, Isaac Jogues and Rene Goupil, Paul of the Cross, Hilarion, and Pope John Paul II, please pray for us.

Funk nite at the BL pt. LXVIII: "The Funk Awakens"

     Tonite we feature "The Funk Awakens" by Darth Punk (!):

     Funk it up!

October 15 saintlist

     Saints Denis, Rusticus, and Eleutherius, Francis Borgia, John XXIII, Wilfrid, Edward the Confessor, Callistus I, and Teresa of Avila, please pray for us.

Funk nite at the BL pt. LXVII: empty funk

October 8 saintlist

     Saints Leger, Ewald & Ewald, Francis of Assisi, Faustina Kowalska, Bruno, Artaldus, and Pelagia, please pray for us.

Funk nite at the BL pt. LXVI: "Ice Ice Baby" cometh

     Tonite, since a lot of people think Vanilla Ice is little better than Satan, and this is the big 66th installment of Funk Nite, we feature the Iceman's self-defining superhit "Ice Ice Baby":

     Funk it up!

Some Quirks re Buck v. Davis: Red/Blue/Black Briefing, Glenn Reynolds’ Driving Etiquette, and Strickland vs. “Mechanical Rules”

      Duane Edward Buck is scheduled to be killed in Texas because he is black. This is a pithy, but plausible, reading of the bizarre, race-tinged death-penalty case Buck v. Davis, due for oral argument in the U.S. Supreme Court on Wednesday, October 5th. There are some interesting quirks in the briefing, and also in some recent real-life events, not to mention relevant case precedent; discussion of said quirks may help readers understand the case better.

I. “What Color Are Your Briefs?”, or, How Petitioner’s Reply Brief May Use Colors to Clever Ends

     First off, there is an interesting quirk in the NAACP Legal Defense Fund reply brief of September 28 for petitioner Buck. Supreme Court rules say that petitioners file blue briefs at the merits stage (except for the shorter reply brief, which is yellow), and respondents file red ones, see id. R. 33(g)(v)-(vii). Occasionally a Justice may even refer to this difference from the bench: e.g., Justice Anthony Kennedy referring to the “Red Brief” in the oral argument, id. at 21, for Hollingsworth v. Perry, 133 S.Ct. 2652 (2013).

     But it’s basically unheard of, from what the present author has seen, for a brief itself to refer to “Red Briefs” and “Blue Briefs”, which would go more into mysterious legalese than most briefs do. (The lay public likely has little notion that some Court briefs are mandated to be blue, others red, and others white, orange, tan, yellow, cream, or light or dark green, see S. Ct. R. 33(g).)

     The reply brief in Buck does talk about brief color, though, passim, citing to “Blue” or “Red” briefs. (The initial petitioner’s merits brief didn’t do that.) Is this just an amusing quirk, or is it amnesia about how the usual reference is to “Petitioner’s” or “Respondent’s” briefs, not to colors?…or is it something more clever than that??

     Of course, it may just be a strange coincidence. However, seeing Petitioner’s emphasis on how bad it is to be arbitrarily punished for being Black (and the word “Black” tends to be capitalized in Petitioner’s briefs), one wonders if his lawyer is trying to make a point about colors—even a subconsciously made point, without intent to do so. Maybe by mentioning “Blue” and “Red” so often, colors of equal value which are arbitrarily assigned by the Court to denote various types of briefs and have no inherent meaning, Buck’s attorney was making the point that black, white, brown, and any other human skin colors are not something that we should be punished for, especially when the punishment is death, as in this case.

     But whether Petitioner meant us to get those thoughts from his reply brief or not, we still learn the lesson, even if it is just a “strange coincidence”, about the meaninglessness, or at least the desired meaninglessness, of skin color in human life. If we can respect blue and red as equals, then presumably we can respect black, white, and everyone else with equal justice under law.

II. Instapundit Incitement against Pedestrian Protesters? or, Living while Black Is Still Dangerous in USA

     But not everyone always respects the spirit of the law. —There is a television show called How to Get Away with Murder, starring Viola Davis as a criminal law professor implicated in covering up the murder of her husband. And now, there is famed “Instapundit” blogger and University of Tennessee law professor Glenn Reynolds, who was recently caught “tweeting” on Twitter about people protesting the fatal police-officer shooting of a black man, Keith Scott: “Run them over.” Presumably, this meant running them over with a motor vehicle, not with a large, soft pillow rolled gently over the protesters.

     Reynolds’ recommended automotive blitzkrieg fortunately did not occur (though who knows who might be “inspired” by that tweet one day?): he even apologized--after first trying to defend his tweet--, and the U. Tenn. administration decided not to punish him. Some UT law graduates are still not happy, though.

     This nasty episode supra is especially relevant to Buck v. Davis because Reynolds’ terrifying tweet shows that even law professors are capable of racially insensitive, or even de facto racist, outbursts that prima facie encourage the mass vehicular butchery of black (and other) protesters. So, then, why would it be impossible that the jury in Buck’s case also behaved irrationally and maybe condemned him to death because of the false evidence claiming black people tend towards violent crime? Like it or not, rational behavior is often a very thin lid over a cauldron of subconscious prejudices, urges, feelings, etc., which keep us from being as fair as we should be. And sometimes, the cauldron boils over.

     While it’s easy to make a punching bag of Reynolds and say, invent nicknames for him (e.g., “Instassassin”, “Killer Reynolds”, or even just “Glenn the Knife”), the time might also be well spent on increasing racial justice in this country. While, hopefully, Reynolds’ brief apparent advocacy of carrying out Nice-style terrorism on protesters against racial injustice was just a fluke, and he has maybe learned his lesson, Duane Buck is still scheduled to be killed because he is black, it seems.

     That said, if Reynolds is going largely unpunished for his appalling remarks—remarks of which all of us in the legal profession should be ashamed, since we are trained to know better than to act that way—that seemed to advocate killing protesters who have many African Americans among them, then maybe Duane Buck should not be punished by death for being black, either.

III. Strickland v. Washington: Disapproving Mechanistic Rigidity re Ineffective Assistance by Counsel

     While the death clock for Buck ticks on, there may be salvation in case law for him, though. Some helpful points to Buck are in Strickland v. Washington, 466 U.S. 668 (1984). For example, as Buck’s counsel has mentioned, see, e.g., Blue Br. at 33, Buck need not show by a preponderance of the evidence that his counsel’s errors swayed the case’s outcome, see Strickland, supra, at 694. And falsely claiming that blacks are inherently more violent than other people is hardly an insubstantially important claim, even if that claim cannot be definitely proven to have swayed the jury.

     Another point from Strickland, which might be useful to mention in Wednesday’s oral argument or elsewhere, is that mere “mechanical” application of rules in situations like Buck’s may be a bad idea:

Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated do not establish mechanical rules. . . . the ultimate focus of inquiry must be on the fundamental fairness of the proceeding[.]

Id. at 696 (O’Connor, J.). So, emphasizing that mere “mechanical” rigidity must not defeat “fundamental fairness” in Buck’s case may be crucial. (O'Connor was not being “quirky” per se in Strickland, but she recognized that reality has quirks or unusual points that may not be justly treated by using needlessly rigid procedures.)

     E.g., there may be overly-rigid arguments for denying Buck relief, such as the argument that of eleven facts Buck put forward to show how extraordinary his case is, see, e.g., Blue Br. at 47, and achieve relief under Federal Rule of Civil Procedure 60(b)(6), none of the facts individually is enough to show “extraordinariness”. But what about the holistic aggregation of all 11 facts together? Could that gestalt prove extraordinariness? It well may.

     Similarly, a realistic consideration of the bizarreness of the case as a whole (absurd racism, broken promises by the Texas Attorney General’s office, etc.) should preclude any overly mechanistic application of rules, see Strickland at 696, that might prevent relief for Buck.

IV. Conclusion: Texas’ Case May Be on Death Row—Which Is Good for the United States

     Then again, petitioner Buck may not have as hard a struggle as one might imagine. Buck has six amicus briefs on his side at the merits stage—including one by the present author—; interestingly, Texas has zero amicus briefs on its side. This says a lot of what needs to be said about the legitimacy of Texas’ case. It is, and should be, a pretty hard row to hoe to defend executing someone using absurd ““evidence”” that “blackness equals violence”.

     On that note, it’s somewhat odd that the U.S. Department of Justice is nowhere to be seen in this case, this case of flagrant racialized abuse of someone in the criminal justice system. Some activists claim the Obama administration hasn’t done enough for black people, and they might be able to adduce the DOJ’s mysterious absence from the Buck case as evidence. One hopes that in similar cases in the future, the federal government might take notice and act.

     That’s especially so because there’s an important national interest besides racial justice inside the U.S.: i.e., the foreign-policy implications of the case. If Buck is executed because he is black, then how can we complain when other nations execute people under suspicious circumstances? such as religiously-tinged executions like those in Saudi Arabia? “A decent respect to the opinions of [hu]mankind”, as the Declaration of Independence put it, not just respect for ourselves, would seem to support Petitioner’s case here. Cf. John Donne, “Any man’s death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee.”

     After all, America is famed throughout the world for having nothing against quirks and the freedom to be quirky; but there are good quirks, and there are bad quirks. And refusing legal relief to Duane Buck is the deadly and unjust kind of quirk that America, and the rest of the world, can’t afford.

(Cross-posted, with edits, from Casetext)

October 1 saintlist

     Saints Finbar, Cosmas and Damian, Vincent de Paul, Lorenzo Ruiz, Michael the Archangel, Jerome, and Thérèse of Lisieux, please pray for us.