Hello! Hello! Hello! Welcome to episode twenty-three of We Don’t Talk About P-word!
Today, we conclude our overview of the three branches with the judicial branch. The judicial branch has the least said about it in the Constitution. Even amendments are more focused on the accused versus the judiciary itself. 

The Founders saw the legislative branch as the most powerful and dangerous branch. Many view the executive in the same way today. The Founders saw the judicial as a bit of an afterthought. They believed it was the responsibility of the elected branches to govern. They saw the judicial branch as the weakest.

In the Federalist Papers #78, Alexander Hamilton said,

“…the judiciary, …will always be the least dangerous to the political rights of the Constitution…”

His reasoning was that the judiciary has no direct way to usurp power from the People. The President commands the troops. The legislature controls the purse and the rules we live by. Not to disrespect Hamilton and the other Founders, but they seriously miscalculated. The marriage of judicial review and partisan politics is felt throughout our republic. The judiciary may not be the most powerful, but there is an argument to be made that it is the most dangerous branch. 

Let’s start with what the Constitution says about the judicial branch. What little it does say comes from the three sections that constitute article three. Section one establishes the judicial power in “one supreme Court”. It also establishes inferior courts through legislation.

Interestingly, unlike the other two branches, the judiciary has no qualifications for membership. In fact, there is nothing that says how many judges or lower courts there should be, not even for the Supreme Court. It leaves the establishment and number of inferior courts up to Congress. It also gives Congressional power to determine the number of Justices. This is a legislative check on the judicial branch. It does say that all federal judges will hold their office during good behavior with no limit. It even guards their compensation, ensuring it cannot be lowered while holding office. 

Section two is what limits the jurisdiction of the Supreme Court. Despite what many think, the Supreme Court does not have jurisdiction in all cases. There are two different types of jurisdictions in the Constitution: original and appellate. Original jurisdiction is when a court is the first court to hear a case. Appellate jurisdiction means that they can only hear cases on appeal. 

The Supreme Court’s original jurisdiction contains only two types of cases. The first is cases that affect “Ambassadors, other public Ministers, and Consuls”. The second is cases “in which a State shall be Party”. This is very limited. In all other cases, the Supreme Court has appellate jurisdiction. Even that is further limited to cases that violate federal or Constitutional law. They cannot intervene in intrastate legal matters unless it violates federal law.

Competing jurisdiction led to the first showdown between the legislative and judicial branches. Section two assigns appellate jurisdiction on cases between states and non-resident citizens. It includes foreign nations and their citizens as well. The “confusion” arises when you consider the court’s original jurisdiction.

“…those in which a State shall be Party, the supreme Court shall have original Jurisdiction.”

According to the Founders, this “confusion” was settled. The principle of sovereign immunity had been decided during the constitutional debates. At least the Framers believed it had been. Sovereign immunity is the right of states to not be sued without permission. In 1793, in the case of Chisholm vs. Georgia, the Supreme Court denied this right. 

Congress was upset over what they saw as the Supreme Court's overreach. In response, Congress passed the Eleventh Amendment in March 1794. This codified sovereign immunity for all states. Without the permission of either the state or federal government, a state may not be sued. By February, the amendment was ratified. 

Section two ends with ensuring trial by jury for all Crimes except impeachment. It also provides for where trials should take place.

Article three ends with a section about treason. Section three defines it and how the punishment will be determined. It also limits the punishment for treason to the guilty party. The family of said person would not be held responsible.

Here is an interesting note about article three. There is no mention of the Chief Justice. The role of the Chief Justice is instead implied in article one, section three. In clause six, it says, “the Chief Justice shall preside:” in reference to an impeachment trial in the Senate.
That’s it. That is all that the Constitution has to say about the judiciary branch. But that’s not the end of the judiciary’s power. To understand how the judiciary got to what we know today, there is a bit more to understand.

The hierarchy of the judicial branch begins with the Supreme Court at the top. As I have already said, the Supreme Court mostly functions as an appellate court. Getting your case to the Supreme Court is part of the appeals process. However, just because you appeal to the Supreme Court does not mean they have to hear it. The cases heard by the Supreme Court are limited and not all are accepted. The Supreme Court is also the court of last resort. Once the Supreme Court has spoken on a case, whether it be through a ruling or rejection, that is the end of the case. 

Beneath the Supreme Court are thirteen Courts of Appeal. These courts are divided into 12 regional circuits and a federal circuit. They hear appeals from trial courts. The federal court is for specialized cases (such as patent law) nationwide. 

Beneath the Courts of Appeal are the district courts. There are ninety-four district courts across the country. Each state and Washington D.C. have at least one, and they are also found in each US territory. These are the first courts to try federal cases.

There are other courts that are part of the judicial branch, but this series of chats is more of an overview. These are the basic infrastructure of our nation’s judicial branch. This information should provide you with a grasp of the judiciary. 

If you want to understand the power of the Supreme Court, it can be summed up by one landmark case in 1803. I am referring to the famous case of Marbury vs. Madison. The details of this case are not particularly important; what it did, however, is. Marbury vs. Madison instilled the power of judicial review into the Supreme Court. 

Judicial review is what provides the Supreme Court with its check on the other two branches. It is their right to determine the legitimacy of executive and legislative actions. In plain speech, they can determine if government actions and laws are unconstitutional.
Many might argue that this was always the intention of the Constitution. You might even call it an “originalist” view. In Hamilton’s Federalist #78, he wrote a fierce defense of the subject. Thomas Jefferson thought of Marbury vs. Madison differently. In a letter to Abigail Adams, his predecessor’s wife, he said,

“…the opinion which gives to the judges the right to decide what laws are constitutional… for the legislature and executive… would make the judiciary a despotic branch.”

I’m never happy when I must agree with Hamilton, especially over Jefferson. But this time I think Hamilton is right. The Constitution was always designed to set up checks and balances in our government. The judiciary determining constitutionality sits firmly in the role of our Constitutional government. If considered without bias , this is the only check that the judicial branch has on the other two. This tells me that judicial review was always meant to be in their purview. 

Jefferson likely supported the idea of judicial review during ratification. By 1804, he had become more than jaded by partisanship.

Partisanship has been the biggest contributor to the dysfunction of the judiciary. This is even more true than in the rest of our government. Despite how it may look now, we have attempted to address partisanship in the other branches. The Twelfth Amendment in 1804 changed the way we elect presidents. In 1912, we changed Senators to be directly elected with the Seventeenth Amendment. Since 1789, we have done nothing to fight partisanship in the judiciary. 

This leads me to the checks on the judiciary from the executive and the legislative. The executive has two checks, the first of which is its ability to nominate judges. It is the President’s job to fill vacancies in the Supreme Court and all lower federal courts. The President also nominates the Chief Justice of the Supreme Court. 

Its second check is the ability to pardon judgments made by the judiciary.

Most of the checks on the judiciary come from the legislative.  This is why partisanship is so dangerous. In fact, even the nomination process is shared between the executive and legislative. Congress must approve all nominations. 

The legislative branch's most obvious check is its right to impeach. They may enforce this on judges for bad behavior, but remember they get to decide what “bad behavior” means. That definition shifts with the partisan winds  of Congress.

As we discussed in the episode on the legislative branch, they have the ‘power of the purse’. This is a major check on the judicial, as they could decide not to appropriate adequate funds to run the courts. This would effectively make the judiciary moot. They would be unable to do their job without funding. 

The amendment process is also a check on the judiciary. The judiciary can decide something is unconstitutional. The legislature can then turn around and make it constitutional. This was the motivation for the first real use of Congress’s amendment power. Congress believed that the Supreme Court had exceeded its role. This led to the ratification of the eleventh amendment. This is obviously a longer-term check, but one that we have ignored as partisanship has taken hold.

Lastly, the legislative branch has the right to limit the judiciary through legislation. Simple legislation may limit or remove the judiciary's jurisdiction in most cases. This is called jurisdiction stripping. It limits the types of cases that the judicial branch can review. Only the two circumstances where they have original jurisdiction are relatively safe. Even that is vulnerable, as shown with the Eleventh Amendment. For most things, though, an amendment is unnecessary. 

Additionally, Congress may change the number of federal courts and judgeships. They may even change the number of justices on the Supreme Court, often referred to as court packing. It was a political maneuver attempted in 1937 by President Franklin Roosevelt. The partisanship on the court was blocking his policy agenda. Roosevelt hatched a plan to increase the number of justices to ensure support for his agenda. To say it was a controversial plan would be an understatement. The bill was never passed, and a shakeup in the court made it irrelevant. The fact is that Congress has the right to increase or reduce the amount of Supreme Court Justices. We have had as few as five and as many as ten at one time throughout our history. Since 1869 the number has been fixed at nine. 
The check that the judiciary exerts on the other two should be obvious by this point. They may declare laws passed by the legislature and executive actions unconstitutional. The judiciary is the ultimate and final authority of constitutionality. 

The judiciary wields so few checks and has limited active power. What makes me say that the judiciary is the most dangerous branch?

Unlike the other two branches, the judiciary is unique. They are the only unelected branch of government. All members of the judiciary are appointed, and in the end, they are all partisan appointees. To limit the danger, the Framers required concurrence between the legislative and executive. But all judges are appointed by a partisan president and consented to by a partisan senate. Partisanship in the judiciary is more prevalent, and it is also more dangerous.

Even though they swear an oath to defend the Constitution, there is nothing holding judges to it. Partisanship is not an impeachable offense. In fact, it is the byproduct of the saying “Elections have consequences”. Even if it was impeachable, partisanship is rampant in Congress. Why would they limit something that benefits them? For a perfect example, look no further than the year-plus it took to replace the late Justice Scalia. The Senate refused to fill the vacancy until after 45 won the Presidency in 2016. The partisan hold of the Supreme Court solidified. 

Every two to six years, we get to remove bad legislators. Every four years, we get to remove or change presidents. Judges get to stay… for life. The People have no say over the unelected  branch of government that is meant to protect our rights. 

There is nothing we can do when they choose to protect partisan interests over those of the People. There is nothing we can do when they choose to use spurious “precedent” to give our rights to corporations. There is nothing we can do when they accept vacations and gifts to further the power of the wealthy.  

This has led to some extremely partisan and biased courts. We see it widely today, and it is easy to see why. The Power of the legislature is spread among 535 people. The Power of the executive is the most visible and so the most scrutinized. The Power of the judicial is held by only nine people who never have to consider the judgment of the People . Once they are confirmed, there is little to keep them in actual check.

Even though these nine people change over time, power is jealously hoarded. Power once held is not readily given away. The judicial branch, like our government, was designed without partisanship in mind. Unlike the other two branches, we have done nothing to remedy this since ratification. What has the result been? Partisan judges further the agenda of the parties that nominate them, and not that of the People. 

I am not saying that all judges are bad or even partisan. Some do their job in an unbiased manner, Democrat and Republican appointees alike. I am saying that there has been an infestation of partisanship in the judiciary. Too many judges are more concerned with their own power and agenda than the welfare of the People. The same can be said about Congress and the Presidency. But partisanship in the judiciary is much more dangerous.
I am saying We the People must be watchful. I am saying We the People must defend democracy. I am saying We the People must jealously hoard our power. 

The judicial branch has been hijacked by our adversarial political system. 

We must understand how, and work together towards a solution. Why?

Because in this nation, We the People are the Power, and that is where the power must remain.

Before we go today, I want to bring your attention to a couple of current news stories. They are appropriate since we are talking about the judicial, and both involve cases that we need to keep an eye on. 

The first one has to do with the historical indictment of a former President. This is serious, indeed. The partisan narrative is to paint it as either the crime of the century or partisan overreach. Neither side denies the possibility of a crime, which means there is a possible crime. 

The first thing we must understand is that in the United States, you are innocent until proven guilty.  Your feelings towards the former President are irrelevant. There is no guilt until a court convicts.

The second thing is that no one is above the law. That is the very basis of a democratic government: justice. 

“We the People of the United States, in Order to form a more perfect Union, establish Justice…”

A crime was committed. It may not be as serious as some are claiming, and the former President may not be involved. But a crime was committed. People have even been convicted of involvement in this crime . Obviously, the evidence presented points to the possibility that the President was involved. If he was not charged, it would set a dangerous precedent and endanger democracy itself. We must not extend special rights to anyone just because of their position, power, or wealth. That is not the democratic way. That decision must be made by a jury of their peers. 

Many have complained about the District Attorney making the decision to indict. They have called this a partisan decision. First, the decision was made by a grand jury. This is a panel of peers that listen to all the evidence. They then decide if there is enough evidence to suggest that someone is guilty. The ease of indictment through a grand jury has become a bit of a joke. New York Judge Solomon Wachtler once quipped you could get a grand jury to “indict a ham sandwich”.

This may be true, but once a grand jury decides a crime may have been committed, the DA has few options. They have a choice to make: uphold the law or ignore their oath. They may say no one is above the law, or they may raise one man above the People. You cannot do both.

The answer is clear. Like all officers of the court, the DA took an oath to support the Constitution of the United States. Raising one man above the People contradicts that oath.

If you or I were suspected of committing this crime, no one would even question our indictment. The truth is that a grand jury felt that there was enough evidence that he committed a crime. A district attorney  made the decision we should expect them to make  and showed no one is above the law .  It is now up to a jury to determine the guilt of the former President. It is our job to ensure justice plays out unhampered by partisan emotion . 

The second story I want to highlight directly affects the highest court in the land. We also don’t know much about this story yet, as the facts are slowly beginning to trickle out. This is of course the story surrounding Associate Justice Clarence Thomas. 

For the last twenty years, he has accepted extravagant gifts and trips from Harlan Crow. Crow is a wealthy Dallas, Texas real estate magnate. These trips included annual stays at Crow’s New York mountain resort. He and his wife also enjoyed an island-hopping vacation to Indonesia. This trip involved private planes and yachts. This vacation should have cost more than half a million dollars, and Thomas has a salary of $ 285,000-a-year. None of these ‘gifts’ were declared in his financial disclosures as required by law since 1978.

You might be wondering why this story matters. This is another incident of buying access to government representatives. Remember: justices aren't elected, or even subject to the People's will. While spending time on Crow’s yacht or at a resort, Crow has great influence over Thomas. Crow can surround him with like-minded individuals to push their agenda. That’s not to mention that gifts make someone much more sympathetic to your wants. This is access and influence that most Americans do not have. Financial disclosures became law following Watergate, to reduce corruption in the government. 

This is an extremely important story to watch unfold. The legitimacy of the current Supreme Court is in question. We must view the facts as they come out without partisan glasses. It’s irrelevant if these ‘gifts’ ever actually persuaded Thomas to make a decision. The appearance of impropriety is enough to question the legitimacy of the court. Our courts are partisan enough; we cannot allow them to be unethical as well. 

We the People must be secure in the impartiality of our judges. Otherwise, democracy doesn’t work.

I hope that you will keep these stories in your sight as they unfold. The outcome of these stories is important, but not for the reason you might think. It isn't about guilt or innocence, although that is significant. Both cases put the health of the People's power front and center. First is the ultimate test of our declaration that no one is above the law. The second is the ultimate gauge of partisanship and ethics within our Supreme Court. Will they protect the People, or will the elites put one more nail in the coffin of American Democracy?

God, help it be the former and not the latter. No one is above the law.