Saturday, September 19, 2020

IN MEMORIAM: RBG

 

“Real change, enduring change happens one step at a time.

-Ruth Bader Ginsburg

Yesterday, we heard the sad news that U. S. Supreme Court Justice Ruth Bader Ginsburg had lost her battle with pancreatic cancer and had left us at the age of 87 after 27 years of distinguished service on the nation’s highest bench. 

There are numerous political implications involved, here, on account of the vacancy left by Justice Ginsburg’s passing, but we will not be focusing on any of those issues in this blog. 

Plenty is being said about that in the media, understandably, and yet it seems ghoulishly soon. It began almost the moment she passed, as it happens, following a statement by the Senate majority leader to the effect that he intended to ensure she was replaced without delay. I will permit myself only to wonder aloud where common decency has gone in American society, leaving my readers to answer that question for themselves. 

For now, this unanticipated extra edition of “Penumbral Emanations” will honor Justice Ginsburg’s passing in the form of this, my own brief personal tribute. I don’t want to write a biographical sketch or a summation of her fascinating career. Her life and work speak for themselves and you can read about that anywhere. 

What I would rather do is offer a few rather random reflections and observations of my own. 

Earlier this year I watched the 2018 RBG biopic “On the Basis of Sex” starring Felicity Jones as Ruth Bader Ginsburg and Armie Hammer as her beloved husband, Martin Ginsburg, whom she married in 1954. 

She was “Joan Ruth Bader” at that time. Martin Ginsburg, of course, died of cancer in 2010. He had, however, battled cancer much earlier on as a young law student at Harvard, where Ruth was also studying at the time. Martin had to undergo radiation treatment and was not able to attend classes during his illness. 

The film very touchingly portrays Ruth self-sacrificially attending both her own classes and his, taking notes for Martin, reviewing his classes with him at home, and typing up his papers for him, all the while taking care of their three-year-old daughter. 

After watching any historical or biographical film I tend to fact-check it for accuracy and I was pleased to learn that this chapter of their lives together was portrayed quite accurately. 

I was, however, displeased to read that the instances of prejudice and resistance she met both as a woman and as a Jew were more frequent and pronounced than the film had time to portray. The film did not discuss, for example, that Ginsburg had applied to clerk for Supreme Court Justice Felix Frankfurter (more about him in some upcoming edition of this blog, to be sure), but that he rejected her application, outright…on the basis of sex. 

As we know, Ginsburg would have the last laugh, there, with Bill Clinton nominating her in 1993 to replace outgoing Justice Byron White, the Kennedy appointee and star athlete who notably dissented in Roe v. Wade. Ginsburg, who had herself made comments critical of Roe, might never have gotten to the court without the maneuvering of husband Marty, who was determined to boost the wife who had boosted him during his law school days when he battled with cancer. 

Ruth’s name was not at the top of Clinton’s list by any means, buried under a pile of other nominees on the president’s desk. A meeting was finally arranged with Clinton, however. After a 15 minute conversation with RBG, the president was sold. 

Ginsburg would join Arizona Republican Sandra Day O’Connor on the bench as the second woman to sit on the Supreme Court. Although they were from opposite ends of the political spectrum, Ginsburg and O’Connor would tend to have each other’s backs. 

Justice Ginsburg recalled to Supreme Court biographer Joan Biskupic an exchange she once had with O’Connor about the first majority opinion she was assigned to write as a neophyte justice. New justices were typically given easy unanimous opinions as their first assignments, however Chief Justice Bill Rehnquist had dropped a very complicated decision in her lap. “How can he do this to me, Sandra?” she vented. “You just have to do it, Ruth,” O’Connor replied. 

She did, of course, and she would go on to author over 200 majority opinions and a plethora of dissents and concurrences. 

Ginsburg would feel a bit alone on the bench after O’Connor retired in 2006 but would rejoice at the appointment of Sonia Sotomayor in 2009 and again at the appointment of Elena Kagan in 2010. Ginsburg once remarked that she took no small pleasure from watching Justice Kagan going toe-to-toe with Chief Justice Roberts, sparring with him behind the scenes when it came time to drafting opinions. 

Three female justices were, in RBG’s opinion, a good start, but just a start. “When I'm sometimes asked when will there be enough [women on the Supreme Court] and I say, 'When there are nine,' people are shocked,” Ginsburg once famously stated, “But there'd been nine men, and nobody's ever raised a question about that.” 

One of those men was ultra-conservative justice Antonin Scalia whose arrogance both Ginsburg and O’Connor could at times be exasperated by. RBG once commented that there were times she “wanted to strangle him.” In spite of their differences, however, Justices Ginsburg and Scalia quite famously became very good friends and were often seen attending the opera together, dining together, and going on various adventures together. 

In 2014, following a private lunch with President Barack Obama at the White House, speculation arose that President Obama had perhaps asked her to step down to make way for a younger liberal justice. He had not asked her to, Ginsburg revealed, offering that “The President eats very quickly and I eat very slowly.” When asked why Obama had invited her for lunch, if not to ask her to step aside, she speculated that it was simply because the president liked her and wanted to have lunch with her. “I also like him,” she declared. 

Justice Ginsburg was once asked about her ambition to become a Supreme Court justice to which she responded that her first choice would have been to be an opera diva. She loved the opera. 

In court, however, Ruth Ginsburg was anything but a diva. She was quietly exacting in her questions and could be tough from the bench but she was never egocentric or theatrical. Scalia once observed that she could shake a lawyer who made a ridiculous argument before the court “like a dog with a bone.” 

Justice Ginsburg’s love of opera, incidentally, was so persistent that she worked out while listening to it, according to her personal trainer, Bryant Johnson. “When you know opera like she knows it, it gets you going,” Johnson remarked, “It has a beat.” 

RBG didn’t train in her old age simply to stay on the court in the hopes of outlasting the Trump administration, however; her motivation was down-to-earth and practical. “Exercise won’t make you live longer,” she said, “but it will improve your quality of life and enable you to get off the toilet by yourself.” 

Ruth Bader Ginsburg was, in the words of Justice Sotomayor, “a pathbreaking champion of women’s rights,” not only on the high court but throughout her long career as a professor, lawyer, and judge. She was also, of course, a modern American icon…our “Notorious RBG”…and her name will be well-remembered. 

Of all the tributes offered today by Justice Ginsburg’s colleagues, I think the most effusive and the most moving was written by the Supreme Court’s newest and perhaps most controversial justice, Brett Kavanaugh. I was so impressed by it that I am going to reproduce it here in full: 

"No American has ever done more than Justice Ginsburg to ensure equal justice under law for women. She was a cherished colleague, and she inspired me, and all of us, with her unparalleled work ethic and devotion to the law. A meticulous and pathmarking judge, she held herself to the highest standards of precision and accuracy in her beautifully crafted opinions. And she inspired all of us to try to meet those same exacting standards. I learned from her principled voice and marveled at her wonderful wit at our weekly conferences and daily lunches. Justice Ginsburg paved the way for women to become lawyers and judges. She made it possible for women and girls like my daughters to compete on equal footing as student-athletes. When Justice Ginsburg was last in my office earlier this year, I pointed out a photo I keep of her standing with four women who served as law clerks in my chambers in my first term. As long as I am fortunate enough to serve on the Supreme Court, I will keep that photo prominently in my office as a continuing tribute to Justice Ginsburg and as a daily reminder to work hard and pursue equal justice. May God bless Ruth Bader Ginsburg." 

I think it is entirely fitting to close this memorial issue with words of tribute from Westarctica’s own pioneering female jurist, Chief Justice Christine Wood:

“Ruth Bader Ginsburg remains an inspiration, forever a beacon of hope in uncertain times. It is a heavy loss that we are now without this pioneer who fought so ardently to bring about equality and justice. A legend of The Supreme Court of the United States but wholly respected all over the world, her legacy will be cemented in history to inspire those following in her footsteps.”

The Honorable Ruth Bader Ginsburg
1933 - 2020





Saturday, September 5, 2020

MARBURY, MARSHALL, AND JUDICIAL REVIEW IN WESTARCTICA


Just how long is the long arm of the law, and to whose body is it attached? And how can the fallout from a bitter political feud between John Adams and Thomas Jefferson possibly illuminate the constitutional expectations concerning the reach, scope, and authority of the Grand Ducal Court of Westarctica? 

In this inaugural piece, we’re going to explore the historical origins of one of the signal prerogatives of Westarctica’s high court, namely, the power of judicial review. In order to do so, we’ll be taking a trip to another place and time. To be precise, we are going to head to the mid-Atlantic region of the American east coast at the turn of the 19th century, ending up in a boggy, undeveloped little backwater of a town on the Potomac River known to its profoundly inconvenienced inhabitants as “Washington City”. 

We’ll take that trip in just a bit. Before we embark upon that rustic journey “back east”, however, allow me to invite you to put on your parka and goggles and to let your mind transport you for a moment to the South Pole and into the future. 

When you contemplate the distant future of Westarctica, you may conjure up images in your mind’s eye of a portion of the Antarctic settled and inhabited by your children or your children’s children. You might very well envision a relatively small settlement, at first, which, over time, develops into something like a town, which perhaps, further down the line, transforms into a city from which future Westarcticans might, then, radiate to establish new settlements, new towns, and new cities throughout the territory claimed by our intrepid Grand Duke. 

The scenario you imagine would not, apart from the climate, be utterly unlike the scenario unfolding in the young United States in the year 1803, to which we now travel. 

From the cities established during colonial days along the Eastern Seaboard, Americans were radiating outward, heading further and further west. This westward expansion of the American republic would greatly expand and accelerate, as we know, beginning with the U.S. Government’s purchase of the Louisiana Territory from France in this interesting year that we now find ourselves in. 

The great westward expansion notwithstanding, the corridors of power and influence would remain back east, for the time being, principally in places like New York City, Philadelphia, and in the new capital city of Washington, DC, where a large white neoclassical building on a hill, given the novel yet entirely fitting name of “Capitol”, was being erected to house two of the three branches of the young American government. 

Imagine, if you will, the scene, one of brick masons, stone masons, master carpenters, skilled laborers…and slave foremen, directing enslaved men, women, and children about…to help build the temple of democracy in this self-styled “land of the free”. 

If, while all the noise and clatter of construction on Capitol Hill is going on, we should venture to take a bumpy carriage ride about one and a half miles west (always heading west), we will find standing near a window inside yet another large white neoclassical structure a remarkably talented, energetic, and rather cerebral man who, despite owning slaves, had once upon a time held it to be a “self-evident” truth that “all men are created equal”. 

President Thomas Jefferson, more so than any of his fellow countrymen, perhaps, was looking west. As we walk into the recently finished and still, at this point, rather empty-looking “President’s House”, we can probably smell the new plaster and paint as we behold America’s third chief executive lost in a momentary reverie while staring westward out his window. In a moment, the president will be interrupted by his personal secretary, U.S. Army Captain Meriwether Lewis, who will inform him that Second Lieutenant William Clark has arrived. 

Together, Jefferson, Lewis, and Clark will make their way to the elliptical salon on the state floor to greet guests assembled for the commissioning of the president’s “Corps of Discovery”, an expedition devised to explore the vast new territory west of the Mississippi recently gotten from Napoleon Bonaparte at a bargain price. 

Although we can sense the electricity of the moment in the air, we haven’t been invited to this momentous ceremony, and so we shall importune the presidential party no further. 

As the president passes by with his secretary and Lieutenant Clark, we shall make our apologies to the steward, who graciously bids us exit via the north door. We will not find ourselves on Pennsylvania Avenue as we exit, however, since the stretch of the avenue passing by the north lawn will not be cut through the President's Park for another year. 

Departing the great whitewashed executive mansion, we will hop back into our carriage and check in to a hotel adjacent to Capitol Hill, only to find ourselves a bit bewildered to notice that the lobby has been transformed into a makeshift courtroom. 

The manager explains, to our astonishment, that the United States Supreme Court will be hearing oral arguments in this space later in the week at Chief Justice John Marshall’s request, since there simply aren’t any convenient areas in the unfinished Capitol for the justices to occupy in order to hear the next case on the court’s docket. 

This remarkable case, the briefs for which had been filed back in 1801, centered upon a group of frustrated judicial appointees who had sued the Jefferson administration for obstructing their appointments. 

These discomfited appointees, led by Mr. William Marbury, had been nominated by Jefferson’s predecessor, John Adams, in the final hours of the latter’s presidency. 

Back then, there was a very different kind of electricity in the air in the new capital. Following his narrow Electoral College defeat in the highly contentious election of 1800, a spiteful President Adams had resolved to thwart Jefferson’s “dangerous” Republicans by packing the judicial branch with Federalist appointees. 

Although the Democratic-Republicans had taken the White House and the Congress by storm (much to the Federalists’ horror), Adams was intent upon ensuring that the judiciary, at least, remained a Federalist stronghold for years to come. 

Unfortunately for the Federalists, but conveniently for Jefferson, a number of the appointments, although signed and sealed, were never delivered. Adams’ secretary of state, as it happens, wasn’t able to get to all of them in time. 

The new secretary of state, James Madison, discovered these sealed appointments in the State Department and asked Jefferson what should be done with them. “Nothing,” the new president ordered. 

And so the instruments sat, collecting dust in the secretary of state's office, never delivered to their intended recipients. As far as Jefferson was concerned, the appointment instruments lacked any potency without delivery. 

William Marbury et al saw things a bit differently, however, petitioning the Supreme Court to issue a writ of mandamus against James Madison, commanding the secretary of state to deliver the outstanding appointments. 

With that lawsuit, the story of the U.S. Supreme Court as we know it effectively begins, and the effects of this landmark case ripple through the ages to the present day, making an imprint, however unintentionally, upon even the Constitution of Westarctica. 

At present, the Grand Duke of Westarctica holds court at his personal residence in the great conflagration which is the State of California. His prime minister handles the day-to-day affairs of government from his home office, also in the American West, and the rest of the government is scattered hither and thither about the globe (as are we, the populace of Westarctica). 

One day, however, we anticipate a central place on the map of Antarctica wherein the functions of the central government will be carried out, with each of the primary elements of the constitution operating in close proximity to one another much as they do in any other capital city. 

As a Westarctican citizen, you may perhaps have paused a moment to imagine what a future Westarctican capital city might look like. If so, you have more than likely envisioned basic temporary pre-fab structures giving way, over the decades, perhaps, to permanent and grander structures. 

These latter would likely be rather less like the ornate gothic and neoclassical halls and palaces of the capitals of Europe or the Americas, and perhaps more modern and more aesthetically (and realistically) harmonious with the Antarctic topography, climate, and circumstances. 

In the very early days of Westarctican development, one could easily imagine just a couple of multi-purpose public structures springing up, assembled for the purpose of housing the offices and meeting spaces of the officials of the various branches of government during the summer months. 

At summer’s end, the earliest Westarcticans would depart the continent entirely, of course, to return to more temperate climates before the onset of the Antarctic winter. 

At the time that William Marbury and his band of frustrated Federalist judicial appointees brought their suit against Secretary of State James Madison, the American capital at Washington was similarly abandoned for much of the year, with much of the business of government going on in just a couple of different structures during those months when the elected politicians and appointed bureaucrats found themselves in town to conduct the peoples’ business. 

The president, as we have already seen, although grandly situated at the White House (too grandly, in Jefferson’s estimation), was always happy to get out of Dodge to return to Monticello. Senators and members of Congress, likewise, although they deliberated in dignified legislative chambers in the single finished wing of the Capitol, were forced to lodge in hotels or boarding houses not exactly of five star quality, far removed from their families, and were likewise happy to flee the swampy purgatory of DC before the heat of summer made the place an unbearable, mosquito-infested hell. 

The United States Supreme Court, however, had no fixed permanent home of its own. The court, in fact, would borrow space in the Capitol until the 1930s, when the imposing temple-like structure we are familiar with today was erected thanks to the vision and persistent lobbying of Chief Justice William Howard Taft (and in no small part on account of the endless complaints of Charles Evans Hughes about the lack of adequate facilities in the Capitol). 

The Supreme Court at the time of Marbury vs. Madison was a rather obscure and only slightly regarded entity--something of an afterthought, really--afforded none of the reverence it enjoys today. Although created by the Constitution, America’s high court was not actually treated as an institution with a status co-equal to that of the presidency and of Congress. 

The justices in those days were not lettered in the law. As it happens, no justice of the U.S. Supreme Court would have a law degree until Benjamin Robbins Curtis in 1851 (and until the 21st century, most high court justices would not have a doctorate in law, only a bachelor's degree). John Marshall, the "Great Chief", studied law for all of six weeks and had almost no formal education. As late as 1941, in fact, James F. Byrnes, who had never attended college much less law school, was appointed an associate justice of the Supreme Court (by contrast, all the current justices of the Roberts court boast law degrees from Ivy League universities). 

The job of a Supreme Court justice, as it happens, was not an enviable one, either. Not much came before the court in the early days, for one thing. In fact, in the first year the Supreme Court sat, not a single case was brought before it. The justices of the high court, furthermore, were expected to ride the circuit during their down time, in the days when travel was perilous, inconvenient, and unpleasant (to this day, as a matter of fact, each justice is assigned to a federal circuit). 

America’s first Chief Justice, John Jay, despite his lifetime appointment, was so bored and nonplussed by the Supreme Court gig that he quit after less than six years on the bench to run for governor of New York. 

The Supreme Court of Marbury’s time sometimes met in a borrowed Senate committee room in the Capitol (if it happened not to be in use). The landmark Marbury v. Madison case, however, as we are discovering, was actually heard in the lobby of a hotel. 

Following the outcome of the Marbury case, though, things would begin to look up for the Supreme Court thanks to the almost Solomonic shrewdness of America’s fourth Chief Justice, John Marshall. 

John Marshall, who had, in fact, been President Adams’ secretary of state--yes, the very one who had failed to deliver all of those eleventh hour judicial appointments in time--was nominated to preside over the high court by Adams and was confirmed in that post while still serving as secretary of state. Marshall’s failure to deliver all the appointments of Adams’ “midnight judges” had now come back to haunt him. 

The Marbury case had put the young Supreme Court, struggling for relevance, between a rock and a hard place, and the institution was going to suffer a major blow no matter which way the case went, or so Marshall supposed at first. So had everyone supposed, at first, as a matter of fact. Plenty of prognosticators were predicting the Supreme Court’s eternal damnation into constitutional obscurity over this matter. 

Federalist John Marshall, furthermore, did not relish the prospects of a run-in with Republican Thomas Jefferson, his second cousin. The old adage notwithstanding, blood is not always thicker than water, and politics had made enemies of the two men. 

They frankly couldn’t stand each other at this point, and Marshall had already endured the dubious honor, in 1801, of administering the presidential oath of office to Jefferson. To give yourself a realistic sense of the tension involved, imagine, perhaps--if you will be so good as to indulge--a vice president-elect Kamala Harris being sworn-in by Brett Kavanaugh. 

With the Marbury case, Marshall and Jefferson were met once again, eyeball to eyeball, although this time they were suiting up to do battle against each other. Marshall’s armor, however, appeared to have plenty of vulnerabilities in it compared to that of a triumphant president who, in addition to being cloaked in the mantle of founding fatherhood, had just doubled the size of the United States. 

The opening salvo in the skirmish was volleyed by Jefferson’s Republican-controlled Congress, which passed a bill cancelling the Supreme Court’s 1802 session, entirely, thereby postponing any action by the court until 1803. Congress had the power to do that, you see. Round one went to Jefferson, therefore, who was only too happy to knock Marshall’s Federalist bastion down a peg or two. 

That action by the Republican Congress did nothing, of course, to enhance the court’s prestige in the eyes of Americans at the time and the upcoming Marbury case seemed poised to further diminish it. 

Were the Marshall court to decide against Marbury and in favor of the administration, the court would come across looking like the weak sister it was already imagined to be. If, on the other hand, the court should decide in favor of Marbury and against the administration, the court’s decision would without a doubt have been ignored by Jefferson, thus decimating, entirely, the court’s authority and prestige, making it the laughing stock of the republic. 

At this stage of the game, every action taken, every decision made was setting a precedent for the future, and Marshall was keenly aware of it. It was his task not only to prevent the court from receding into irrelevance, but to strengthen the judiciary for the greater good of the American experiment. Marbury, therefore, posed significant challenges. 

In a stroke of sheer genius, however, Chief Justice Marshall came up with a solution that would manage to increase the court’s footprint on the constitutional landscape while at the same time giving Jefferson exactly what he wanted. Was Thomas Jefferson, however, familiar with the old caution that says “Be careful what you wish for”? If not, he was about to become very familiar with it. 

The solution lay in the Marbury brief’s reference to the Supreme Court’s jurisdiction in such matters, according, at least, to the provisions of the Judiciary Act of 1789. On this point, Marshall found his opportunity for a master stroke that would serve not only to repair the damage which the court’s reputation had just sustained, but to turbo charge its authority, going forward. 

And since we have, by sheer luck, chosen the right DC hotel to stay at, we’ll get to watch it all unfold downstairs in the lobby. The gavel having dropped, let us all now rise as their honours enter the room. 

“The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States! Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!” 

In Marshall’s brilliantly crafted opinion, the court sided with Marbury in no uncertain terms, entirely agreeing with the plaintiff’s contention that the undelivered appointment instruments were valid, potent, and binding, even though they had not been delivered to their intended recipients. The administration's refusal to deliver the instruments, therefore, was illegal. The court further determined that the Marbury brief was entirely correct in its insistence that, according to the Judiciary Act of 1789, the Supreme Court had the power to order James Madison to deliver the appointments. 

The Chief Justice, sitting at his makeshift bench here in our hotel’s rearranged lobby, and flanked by three of the five associate justices (two were not in attendance that day), very likely relished reading the passages of his opinion in which he publicly took the Jefferson administration to task for illegally withholding the Federalist appointments. 

While publicly chastising Jefferson may have given Marshall a certain degree of personal satisfaction, however, the court’s master stroke came next. Marshall declared in the court’s unanimous opinion that the jurisdiction granted to the Supreme Court by the Judiciary Act was, as it so happened, unconstitutional, conflicting, as it did, with the provisions of Article III of the United States Constitution. 

The Supreme Court, therefore, while sympathizing with Marbury, was not in a position to grant relief to the plaintiffs, Marshall said. The unconstitutional provisions of the Judiciary Act, furthermore, referenced by the plaintiffs in their brief, were declared null and void. 

I would wager that you could hear a pin drop in that lobby. The Marshall decision settled upon the room, upon Washington, and upon the now vastly expanded country like a great, bewildering question mark, confounding just about everybody. “What just happened?” was the question in everyone’s mind across the length and breadth of the nation. 

On the surface, it appeared to be a victory for Jefferson and the Republicans. The newspapers were saying so. Jefferson’s supporters were saying so. And why not? The court had not compelled the administration to activate the Adams appointments, after all, and Marbury and his associates left disappointed. 

Thomas Jefferson, himself, however, rather more astute than the average frontier rustic, and now staring out of a window of the East Room towards Capitol Hill, very quickly understood what had just happened. He had been bested by his cousin in the contest, with the Supreme Court ceding to Jefferson the battle in order to win the war. 

The court had just magnified itself, creating for itself a brand new power that would enable it to hold its own in the capital, alongside Congress and the presidency. In taking the bold step of striking down an act of Congress as unconstitutional, the Supreme Court assumed for itself, for the first time, the prerogative of judicial review. 

The high court’s essential holding in Marbury greatly vexed Jefferson. For one thing, the Supreme Court’s power of judicial review was not to be explicitly found in the Constitution. Where was it written that the high court could strike down an act of Congress? Jefferson argued that the power to nullify a federal law should belong only to the democratically-elected Congress which enacted the law to begin with, and not to a tribunal of six appointed men with lifetime tenures. 

John Marshall, however, decided that the Constitution was a legal document and not merely a political document, and that it was the exclusive province of the judiciary, therefore, to decide what was and what was not constitutionally kosher. If the Supreme Court, therefore, should opine that a law was not constitutional, then the law was no valid law at all, no matter that Congress had passed it and the president had signed it. 

The Supreme Court’s power of judicial review, furthermore, according to Marshall, existed in the Constitution because the Supreme Court said it existed in the Constitution. Since the Constitution was law, it was for the court to interpret it. 

Associate Justice William O. Douglas, the modern Supreme Court’s formidable champion of the environment (to whose uninhibited jurisprudence this blog is unofficially dedicated), would, in the 20th century, write famously about constitutional “penumbras, formed by emanations” from innate principles of liberty, but John Marshall found the inherent prerogatives of the court in the implications of American constitutional principles long before “Wild Bill” Douglas ever opined about penumbral emanations. 

“It is emphatically the province and duty of the Judicial Department,” Marshall thundered in his opinion, “to say what the law is.” 

The only way Jefferson could have countered would have been to surrender to the Federalists’ demands that the remaining Adams appointees be given their appointments, thereby undercutting the premise of the Marshall decision. Jefferson was not about to yield to the Federalists, however, and Marshall knew he wouldn’t. The Supreme Court had thus arrived. 

Going forward, the Marshall Court would guard its newfound prestige and its newly assumed prerogative very carefully, treading lightly and going to great pains not to agitate Jefferson further or to attract the ire of the Republicans. Marshall and his colleagues would, for example, abandon the regal red judicial robes so hated by Jefferson on account of their Anglophile overtones, instead donning simple black robes, a custom which has persisted to the present day. 

The power to strike down an act of Congress as unconstitutional, furthermore, would not be wielded by the court again for many years to come, thereby reassuring the Republicans that the high court could be trusted to exercise this newfound prerogative of the judiciary safely and rarely. 

By 1810, the days of the high court hearing oral arguments in hotel lobbies and cramped committee rooms was over, the Supreme Court having scored for itself a splendid permanent chamber in the Capitol. 

The framers of Westarctica’s constitution, whether wittingly or unwittingly, have steered clear of the historical kerfuffle of Marbury v. Madison, explicitly investing the high court with the power of judicial review from the start; it is written into our fundamental document in no uncertain terms. 

Article 21, Section 1 (a) of the Constitution assigns to the Grand Ducal Court “the interpretation of laws to set legal precedent,” and goes on in Section 1 (d) to invest the court with “final opinion and authority regarding the constitutional viability of specific laws and processes.” Article 22, Section 6 (f) reinforces the prerogative of judicial review when it says that the Grand Ducal Court shall be charged with “serving as the ultimate authority on issues regarding the Constitution.” No ambiguity there. 

It so happens, in fact, that Westarctica’s Grand Ducal Court is endowed with certain prerogatives not enjoyed even by the United States Supreme Court. The Westartican Constitution, for example, permits the Grand Ducal Court the right to serve, in a general sense, “as an advisory body on Westarctican governance” (Article 22, Section 6 [a]), and even permits the Chief Justice to serve on the Royal Council “as the Sovereign’s chief legal advisor” (Article 22, Section 4 [a]). 

John Marshall, ambitious for the prestige of his court though he was, would never have coveted such a scenario for himself in his wildest dreams. If we travel up north to Canada, however, we may observe a somewhat similar scenario whereby the Chief Justice of the Canadian Supreme Court does, in fact, enjoy a seat on the Queen’s Privy Council for Canada (and is thereby entitled to the style “The Right Honourable”). 

The language cited in Article 21, supra, and in Article 22, supra, also seems to establish (along with precedent, I am told) the GDC’s prerogative to opine on what the Canadian legal system calls “reference questions”. Reference questions are a means by which the government avoids the prospect of tabling unconstitutional bills before Parliament, to begin with, by getting the high court to rule on their constitutional viability in advance. 

Such a custom is unheard of (and utterly unthinkable) in the United States, but elsewhere it is common enough, and seems to make sense when you think about it. This option arguably fosters the crafting of better and more constitutionally sound legislation, thus reducing the likelihood of the rise of the kind of vicious and divisive constitutional battles that so often plague the American federal judiciary. 

In Canada, Supreme Court decisions on reference questions are not binding, however: the court can neither prevent the government from proposing a bad bill nor can it compel Parliament to refrain from enacting one. To date, however, the court's opinion issued on a reference question has never been ignored. My reading of the Constitution of Westarctica tells me that the binding or non-binding nature of the GDC’s rulings on reference questions posed by the government is something that will need to be clarified one day by subsequent legislation (or perhaps simply by custom or observed precedent). 

What landmark cases lie ahead for Westarctica’s high court to settle, I wonder, either before or after her Antarctic settlements, towns, and cities begin to take shape? Will Westarctica see anything like its own Brown v. Board, its own Roe v. Wade, its own Miranda v. Arizona, or perhaps even its own Bush v. Gore? 

Certainly, as Westarctica grows and develops and as time goes by, important landmark cases will eventually arise and make their way to the high court…cases that will dramatically impact the Westarctican experience in unexpected ways, shaping and defining it for better or for worse for generations to follow.

THE AUTHOR OF THIS BLOG IS THE FIRST AND CURRENT
CLERK OF THE GRAND DUCAL COURT OF WESTARCTICA

GO WEST!
To learn more about Westarctica, visit www.westarctica.info


IN MEMORIAM: RBG

  “Real change, enduring change happens one step at a time. ” -Ruth Bader Ginsburg Yesterday, we heard the sad news that U. S. Supreme Court...