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Senate Republicans should fill the Supreme Court vacancy and vote on fixing the Court permanently. Both major parties agree there is a real problem with the Supreme Court, making membership in the court a subject of the most extreme political tactics. The Republicans must keep their decades-old campaign promise to correct the leftward march of the federal courts. At the same time they should give both Democrats and Republicans real hope of limiting the courts’ potential excesses.
I suggest something like the following:
Proposing an amendment to the Constitution of the United States.
1. The United States Supreme Court has become the center of fierce political fighting over the past half century.
2. The fighting is over placing justices on the court who will rule on political, economic, and cultural issues according to competing views.
3. The attempt to shape the way the Court rules is driven by a long history of good, bad, and horrible court decisions. The Taney Court majority was wicked, their opinion was evil and unconstitutional. The line of cases that gutted the 14th and 15th Amendments were equally unconstitutional, and gave false legitimacy to the oppression of African Americans for almost a century.
4. The source of all this fighting and sometimes wickedness is the failure of the original Constitution to define the Supreme Court’s power relative to the other branches, followed by the Court serving its own interests by claiming for itself the power to make the final determination of the Constitution’s meaning. This legal fiction has been accepted by the Congress and the President over the years as a useful fix to conflict between the two elected branches.
5. That useful fix and legal fiction have now frayed the fabric of our constitutional republic. It is time to set in writing real powers and real checks, properly decided by the States.
Resolved by the Senate and House of Representatives of the United States assembled in Congress (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid, to all intents and purposes, as part of the Constitution when ratified by three-fourths of the several States:
Section 1: The United States Supreme Court shall have the power to review all cases within its expressly granted jurisdiction, reviewing laws and State constitutions applicable in those cases. The Supreme Court may choose to rule on and strike down or uphold laws and executive actions, based on the text of federal laws or the Constitution.
Section 2: On cases not raising constitutional issues, the Congress of the United States may vacate any published opinion, or any Circuit Court opinion appealed to the United States Supreme Court but not heard, by a three-fifths majority vote of the full number of the House of Representatives and the full number of the Senate within six calendar years of the date of publication of the opinion or notice of failure to hear a circuit court case. This vote shall be mandatory, not subject to delay or denial by rules of Congress. The vote shall be by roll call.
Section 3: The States shall have the power to vacate any published opinion of the United States Supreme Court, as well as any Circuit Court decision appealed to the Supreme Court but not heard, provided that the case involves a constitutional issue.
3.a. On cases involving constitutional issues, the State legislatures shall vacate any published opinion by a vote of a simple majority in each State legislature. The vote of three-fifths of the States, within six calendar years of the date of publication of the opinion or notice of failure to hear a circuit court case, shall overturn the United States Supreme Court’s decision, provided this vote is confirmed by a second vote.
3.b. The States shall vote a second time on any case that was overturned by the States. This second vote shall be held in the first legislative sessions after elections for State legislatures. Three-fifths of States, by a vote of their legislatures, shall affirm the prior judgment of the States. This is to ensure that the legislatures express the true will of the citizens of their States.
3.c. These votes are mandatory, not subject to delay or denial, notwithstanding any other provision of constitution, law, rule, or procedure. The first round of votes shall be called on petition of one-third of the members of a State legislative body, on a state-by-state basis. The votes shall be by roll call.
3.d. Any published opinion or case rejected or disposed of by other means at the United States Supreme Court, having exceeded six calendar years from the date of the Supreme Court’s publication of its disposition, shall not be subject to review by the Congress or the States under this amendment. Failure to act, but the Congress or the States, shall affirm the Court was correct.Published in