Tag Archives: US Constitution

Supreme Thoughts

Supreme: 1) Highest in rank or authority; 2) Highest in degree or quality; 3) ultimate or final
–  Merriam-Webster

I recently read a fun and interesting article by Jonah Goldberg.  (Yes, I know – that Jonah Goldberg – please don’t roll your eyes and give up on me). At once randy and riveting – sending insults in many directions –  he does cite and make some interesting points.

After starting out on the topic of the weird magic of orbs, he quotes an Annandale Public Policy survey that determined 75% of American adults cannot identify all three branches of government. (Yes, I know – shocking).  And more than one-third of Americans cannot name a single right conferred by The Bill of Rights.  (As my wife and I say at this point: “And they vote.”)

Trump touches “The Orb” in Riyyad, Saudi Arabia, with Saudi King Salman and Egyptian President al-Sissi.

It’s a good enough starting point for me, but I’ll go off into theory and conspiracy-land instead of slinging poison-dart words.

The US Constitution’s first three Articles deal with the three branches of government.  Article I – The Congress; Article II – The Executive Branch; Article III – The Judicial.

Digging into Article III, it is interesting to note that the Constitution does not – I repeat: the Constitution does NOT – set the number of Supreme Court Justices.

Seal of the Supreme Court of the United States

In fact, the number we have come to know and grow accustomed to – specifically, nine – has not always been the total number. The number is set by acts of Congress. And can be modified by acts of Congress.

When the Supremes first sat, in 1790, the odd number was six. [1].  Why is six odd? It is not, generally speaking, a good idea to have an even number of people deciding things.  Ties can result, and in the Supreme Court, ties lead to no action at all.  Whatever was law before is law after.

In 1807 they judiciously raised the number to seven.  In 1837 it was raised to our familiar nine (perhaps some sort of north-south compromise … I’ll have to look into it).  Oddly, in 1863 it was raised to an even ten.  [At this time the South had virtually no representation in Congress, they bolted to their own government, and it was pretty clear that the North would probably win the war. Not sure if that’s why a seat was added.]

Finally, in a fuss over President Andrew Johnson (Lincoln’s successor … remember, he was impeached and avoided getting removed from office by a single vote), the number was reduced back to seven.  This precluded Johnson, a Tennessee southerner, from appointing any judges.

Then in 1869, with Johnson out and Grant in office, the number was raised back to nine – I suppose to re-enforce the government position on Reconstruction. Or to spite Johnson.

And there, at a total of nine, is where the number of justices has remained for nearly 150 years.

The Supreme Court has had its own building, shown here, since 1935.

Upshot #1 is that Roosevelt’s plan to “pack the court” was not the least bit unconstitutional; although it did represent the sort of power grab that was a hallmark of the his presidency.  Roosevelt believed in “go big, or go home”; he attempted to jack up the number to fifteen, thus giving himself a slam dunk on any issue before the court. Probably no other president did more to establish the tradition of a very powerful executive branch.  [After Obama, and, especially, now Trump, it looks like people in both parties have recognized this danger].

Upshot #2 is a wild long-shot prediction – or perhaps observation of the possibility – that something supremely weird could happen, most likely in 2021: Expansion of the court to 11 members, or more.

My thought process. The backlash against the Republicans for painting themselves into a corner: first with Trump, and then with Moore. These will yoke their general popularity numbers in the ditch for years – and will almost surely result in Congressional seat losses in 2018.  Even popular presidents lose seats in off-year elections (see Obama in 2010).

Unless the Reps can bump Trump and field a Knight (or Dame [2]) in shining armor for 2020 – or the Dems run another truly “horrible” candidate, as in 2016 – there is a good chance the Dems will hold the Whitehouse and both branches of congress come 2021.

Here’s where current events come into play.

  • The Senate has gone “nuclear”. That means the good old days of needing 60% and plenty of compromise to get anything passed (used to be two-thirds) are basically gone.  No one plays nice anymore.  Could blame Harry Reid, but there’s not enough mud or ink for all the villains.  Now it takes only 50-50 (if you have the Whitehouse … the VP casts tie-breaking votes in the Senate).

[The lower house of Representatives has always been designed to go fast: only a simple majority has ever been required … except to commence the Amendment process]

  • Some Supremes are destined to retire, or pass away, soon. So, look for good odds that Trump will get to appoint at least one more judge, securing the Right’s slight advantage (currently approx. 5-4, even noting that Kennedy and – in a few cases – Roberts have swung left a few times).
  • Anthony Kennedy is 82. Although the left sees him as a hateful ideological enemy, he sides with them frequently and is always the “swing” vote in closely decided 5-4 cases.  He probably isn’t sure about Trump (who is?), and, as a relative moderate among right and left sharks, might be hanging on to see what happens in 2020.
  • Even older is Ruth Bader Ginsberg. She is 85 years old and looks 105; her energy is visibly dwindling to all court observers.  A true Progressive/Leftist believer, she is surely hanging on, hoping that Dems win the Whitehouse in 2020.  But she could pass any day, and no one would be surprised.
  • Steven Breyer, at 79-1/2 could keel over too.

If Trump gets to appoint even one more judge, look for the Left and Dems to get super energized. Even more than the hornet’s nest we are observing now. Why? This could “lock in” a perceived rightward slant for at least another decade (even though this court did uphold “Obamacare”, AKA The Affordable Care Act, and Same Sex Marriage rights).

They will seek to overturn any perceived disadvantage by adding at least two seats to the court.

That’s my Far-Out-From-the Center-Field-Peanut-Gallery prediction for now.  Call me out on it in a few years if the Dems take the elections in 2018 and 2020.

Well, the future beckons.  Let’s be careful servants out there!

Cheers and best wishes for 2018.

Joe Girard © 2018


[1] Actually the number was five, although Congress set the number at six.  The sixth justice was not confirmed by the Senate until a few months later.

[2] The equivalent of Knight for females is Dame. When she receives her title, she is said to be “daymed”, not “knighted.”  Link

Democracy, No!

Democracy NO!


The much revered founders of the United States are guilty.  Guilty of disliking democracy — even fearing it.  They did not want this new country to have democracy.  Ever. They erected statutory barriers to it.



“The years leading up the Declaration of Independence gave them them the motive.  The years during and immediately after the war for Independence confirmed that motive. The drafting of the Constitution in 1787 gave them the means to carry out this crime.  Their intent is confirmed by the writing and  passage of the so-called ’Bill of Rights’ — the Constitution’s first ten amendments.


So begins the prosecution’s opening statement against the founders of the United States – and its Constitution’s esteemed framers.


The defense statement: “The founders were many things.  They were first, anti-royalists … abhorring ancestral rule by monarchs. Similarly, they distrusted peerage: the archaic protocol by which great titles and seats to government were granted by heredity.  They were believers that government — the state — derives its ‘just powers’ from the consent of the governed.  That is to say: the government might have any number of powers at any time, but those that are just and righteous can only be conferred by consent through contract with the people who are governed.


In all these ways the founders and framers were radically protective of ‘we the people.’  The charge itself, then, is unjust. It is not appropriate.”


The prosecution presents its case.  To establish the motive, we see videos of angry, shouting mobs.  In one, on King Street in Boston, a large crowd of hundreds is spurred on by chants and slogans memorized in dingy pubs from the shallow words of pamphleteering provocateurs.  Hundreds scream crude obscenities at a solitary young British sentry.

After a while, eight other soldiers – all but one quite young also – appear to relieve the poor lad.  The crowd continues to shout profanities and inane insults. They yell “fire”; actually daring the soldiers to shoot at them. When they still get no response, they begin hurling feces covered rocks. Hooting shouters urge them on.  A jar of urine is flung upon the soldiers.  Shouting back and forth.

Finally, a soldier opens fire.  A struggle and yelling.  Then more gunshot. The mob would call it the Boston Massacre. Even founder and patriot John Adams could see the horror of giving the power of law making to a people so easily agitated and manipulated; he defended the soldiers in the King’s Court, earning acquittal for six, and light sentences for the other two… despite a jury of American locals.

In other video clips, we the jury, are shown scenes of similar mobs — yelling, shouting, literally drunk; drunk with spirit, drunk with mob mentality — breaking into the residences of government officials.  One after another, in city after city, they are pulled out of their homes, often dressed only in a nightgown.  They are stripped naked. To the huzzahs and hollers of the mob — those spurred on by slogans and chants and pamphleteers — we cannot bring ourselves to avert our eyes as the videos show hot oily tar inhumanely poured over bare flesh. They are then covered in feathers.

During the war, popular movements, supported by vox populi, led to harassment of Tories.  Those loyal to the established government were subject to all sorts of vengeful acts, not limited to the taking of life and property.


Even after independence, and after the War for Independence (but before the Constitution), the rule of law was subject to the rule of the populace .

“Serious rioting recurred in many of the major cities … Extralegal groups and conventions repeatedly sprang up to take public action into their own hands, to intimidate voters, to regulate prices, or to close courts.  … In the 1780s … mobs were taking over the functions of government.  This was not simply a chimerical fear, for the legislatures in the 1780s appeared to be extraordinarily susceptible to mass demonstrations and mob violence.  State governments were continually forced to submit to various kinds of popular pressures, often expressed outside the regular legal channels.” [1]


Before, during and even after the revolution.  All of these actions, the prosecution points out, were done with the look and feel of popular democracy; And so the framers had the motive to suppress the will of the people, the will of the demos.


Now the prosecution directs our attention to the deed itself: Restricting democracy.  The framers gave us – we the people – three branches of government, and yet only one-half of one branch is “chosen by the people”; so says Article 1, Section 2.


How crafty they were to throw “the people” a “democratic bone.”  This House would turn over rapidly, every two years, as “chosen by the people.”  It served the framers doubly well: 1) this house would give vent to the popular current trends; they could be more responsive to democratic populism and even recite popular chants in the halls of government; and 2) they would probably,  hopefully, go back to their plows,  mills, and shops after a term or two.


The Senate, the more powerful house of the Legislature, would be chosen not by the people, but by the Legislatures of the States themselves (Article 1, Section 3).  These terms were six years, thus allowing the members to take a less populist view, (the defense interjects: “And a more long term view.”  The judge pounds the gavel: “That’s out of order and enough of that, counsel!)  … ahem, the Senate would naturally take a less populist view, a less democratic view, of legislative issues.  Note: Not chosen by the people.  Not reflecting the view of the people. Not democracy.


And then, look what they did to the Executive Office.  The framers did not want this person to be fawned over by the public, worshiped as some regal or charismatic persona.  Consequently, they struggled mightily with what to call this person, and how to choose him.


By what simple non-populist title to address him in person and in legal documents?  They feared anything that might smack of privilege or royalty. They desired to convey a humble, yet appropriate title.  A struggle for sure; after all, no country yet known had done such a thing.  They settled on such a wonderfully simple solution that it was doomed to fail. The executive is the person who presides over government and presides over the highest meetings of government.  They called him, simply, President.

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