Defining Legitimacy

Make no mistake. When certain nominees for the Supreme Court engaged in deceptive practices during their confirmation hearings to win their form-fitting seats, it was they who undermined the legitimacy of the Court. And when, after the dark money funded nominations and confirmations, they go on to accept special accommodations, with individuals and companies that have business before the Court, reasonable people might infer that the same Justices who legalized political bribery, are now to be counted among its greatest beneficiaries.

John Roberts actually said: “I don’t understand the connection between opinions that people disagree with and the legitimacy of the Court.” With all due respect Mr. Chief Justice, a majority of the people in the United States don’t believe you because it is seen within the context of a self-serving pattern and practice.

The real question before the Court of Public Opinion is whether Roberts is just feigning an abysmal ignorance or whether there is something more sinister at play; something reminiscent of the power dynamics at play during the times of the nation’s founding. When the well coiffed, pink fingered oligarchs with their squeaky clean fingernails wanted to impose their money and power preferences in 1776 with high sounding words, the great unwashed called their bluff. 

William Hogeland’s description of what occurred during that time, through his book The Hamilton Scheme, is not counted among the historical analogues used by those prevaricators of today who have consistently back-burnered the public interest. And John Roberts effort to place the separation of powers above the need for complementary powers, balance of power, or checks and balances is just the latest among the Supreme Court’s stupid ideas.

The Corner Post Decision that Amy Comer Barrett read, just prior to the one where the Court reprised the monarchy, opens the floodgates for gamesmanship in the form of legal challenges to each and every federal regulation. Previously, one would be required to understand and accept the rules of any given game prior to any participation. Now, the Supreme Court has created an entirely new class of professional victims. And, in so doing, it has made a solid case for expanding the Court by twelve additional Justices.

In her Dissent, Justice Jackson wrote:

At the end of a momentous Term, this much is clear: The tsunami of lawsuits against agencies that the Court’s holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the Federal Government. Even more to the present point, that result simply cannot be what Congress intended when it enacted legislation that stood up and funded federal agencies and vested them with authority to set the ground rules for the individuals and entities that participate in our economy and our society. It is utterly inconceivable that §2401(a)’s statute of limitations was meant to permit fresh attacks on settled regulations from all new comers forever. Yet, that is what the majority holds today.

So now, unelected judges will routinely substitute their unqualified opinions for the methodical science of unelected, but highly qualified, experts at the agency level. The Court’s effort to deconstruct the administrative state will undoubtedly increase the case load for the Federal Courts. And, any lethargic response, such as the proposal to enlarge the court to thirteen Justices, will be insufficient. The current levels of unsettled case law notwithstanding, the Court must be expanded to at least twenty-one Justices if it is to handle its self-imposed oncoming ‘tsunami.”

Just as the Appellate Courts typically impanel three justices for any given case, the Supreme Court could draw lots to randomly impanel seven justices to hear each case for which the full Court has granted cert. This would keep those lying in wait, for ideological shifts to occur before filing politically motivated cases, from gaming the system. It would lessen the influence of those justices that assumed positions of honor and trust by means of deceptive practices. And, it would have the potential to restore public confidence with respect to the legitimacy of the judicial process.

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