Legal Ethics and Reform


Wood, Dean, and Napolitano note Needed Flexibility in Judicial Thinking

Gordon Wood, Prof. of History at Brown, says the Supreme Court of the US must operate with legal fictions in order to keep the America state on some sort of even keel. If the "Surpremes" truly followed what the founders intended they would necessarily show favoritism to the preferences of married, white, Protestant men who worked in small businesses and were largely self reliant. That of course could not work given the important roles that women, blacks, welfare recipients, Catholics, atheists, homosexuals, large corporations, and governmental bureaucrats currently play in American society.

John Dean, of Watergate fame, feels that many founders knew that the Constitutional system they devised would eventually put ultimate power in the hands of the Supreme Court. Further they wanted to keep the scope of action for that court as wide as possible so nothing in the way of "checks and balances" was put in the document. Further in preparing the Federalist papers the founders arranged to mislead the state ratifying conventions by making it sound like, as in Federalist 77, that the Court would be so powerless that no real attention needed to be devoted to it.. Of course, everyone points to Marberry v. Madison as the power grab that gave the Supreme Court its overwhelming powers, but John Dean makes a very cogent argument that this situation was known to many founders in 1789. They simply chose to cover it over to facilitate ratification.

Judge Andrew Napolitano, who was a local judge in New Jersey and later a law professor at Seton Hall, says it is wrong to believe that judges decide cases by looking objectively at the law. The famous Supreme Court Justice Benjamin Cardozo in his book on court procedures points out that judges are human and bring their preferences to the job of judging. All participants in court proceedings should expect these preferences to show up in the judge's rulings and decisions. A judge might deny this is happening; but, of course, those suffering from a lack of objectivity are unlikely to recognize their own limitation.

These observations, by these three thoughtful men, make it clear the time is long past that some workable set of "checks and balances" be found for the Supreme Court's individual decisions. Exactly how these "checks and balances" might be structured will require all thoughtful Americans to take time off from watching TV and begin exchanging ideas on the problem. Ordinary Americas, those who have escaped the "mind shrinking" experience of law school, must recapture ultimate control of their government (There are ideas on how to do this elsewhere in this website see hm_pg9a..html for Pres. Teddy Rooseveltís idea.)

Once a workable plan emerges, it will have to adopted. That will require an amendment to the US Constitution. Here is final huge hurdle; this amendment to the US Constitution has to begin in the Congress and then be ratified by the state legislatures. But the Congress is dominated by lawyers (over 40% in the House and over 50% of the Senate) so it is unlikely these lawyers will approve an amendment that curbs the power of the Supreme Court, the very court they were taught to revere when they attended law school. So a lot of lawyers will have to be pushed out of Congress first, before the amendment is considered.

AN ADDITIONAL THOUGHT ON CONSTITUTIONAL AMENDMENTS -

It would probably be a good idea to have two other amendments considered at the same time as this Supreme Court "checks and balances" amendment.

1) The first of these would be an amendment that prohibited lawyers from serving in Congress unless they resign their bar association membership and agree to retake the bar exam if they wish later in life to become lawyers again.

2) The second of these amendments would be an amendment that allows 67% of the state legislatures to initiate a future amendment to Constitution to the Constitution with the 3/4 vote to ratify required by the US Congress.


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