The Supreme Court’s role: judgments unbiased, nonpartisan, meaningfully reasoned?

Is the Supreme Court fulfilling its role? Are its judgments “just,” “unbiased,” “nonpartisan,” reasoned in a meaningful way? Is it checking that government branches recognize their limits? Are its judgments promoting the general welfare?

September, 2020

Open letter to the Justices of the Supreme Court

Heinz Aeschbach, MD, co-founder, president,  and  Walter Aeschbach, MD, co-founder, vice president of Humane Civilization Worldwide 

Summary and introductory remarks:

The Constitution is primarily concerned about having a secular democracy with a balance of power between the branches of government, no group domineering and suppressing another and the goal of promoting the general welfare always being considered.
It appears that roles of federal courts and specifically the Supreme Court are hardly fulfilled:
– ensuring that each branch of government recognizes the limits of its own power.
– limits on democratic government by ensuring that popular majorities cannot pass laws that harm and/or take undue advantage of unpopular minorities.

Regarding the court’s history:
Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit. John Jay, the first Chief Justice, clarified: The Constitution limits the Court to dealing with “Cases” and “Controversies.”
However, to fulfill its function, it appears obvious that the court must sometimes be proactive in addressing controversies where victims are hardly able to sue.

     Today we hardly have independent judges and they appear to understand ‘reasoned’ to mean arguing about biased, contradicting interpretations of issues rather than rational thinking based on sciences, pragmatism and consideration of the general welfare. Reason should always lead independent justices to reach essentially unanimity. We must not have justices that are Democrats, Republicans, and/or members of the conservative Federalist Society. Judges must never be ideologues or partly bound by their ‘faith.’ All judgments must be free of any biases, ideological or religious, and they must avoid discrimination (e.g. against women and particularly poor women). Consequences of judgments must be considered – Do they promote the general welfare? Do they cause much suffering and deaths? Do they decrease injustices?

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The founders of the U.S. basically envisioned a country with a constitution that promotes equality and “the general Welfare”; its government is to be a secular democracy with a balance of power between its branches.

The roles of the Supreme Court are:

https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/about 

     First, as the highest court in the land, it is the court of last resort for those looking for justice.
     
Second, due to its power of judicial review, it plays an essential role in ensuring that each branch of government recognizes the limits of its own power.
Third, it protects civil rights and liberties by striking down laws that violate the Constitution.
Finally, it sets appropriate limits on democratic government by ensuring that popular majorities cannot pass laws that harm and/or take undue advantage of unpopular minorities.

In essence, it serves to ensure that the changing views of a majority do not undermine the fundamental values common to all Americans, i.e. freedom of speech, freedom of religion, and due process of law.

While the Constitution emphasizes equality and balance of power, the founders of this country had major blind spots, not recognizing rights of slaves, indigenous Americans, and women; they lived by an obsolete morality. When intending to protect minorities, they ignored that sometimes the majority is harmed and taken undue advantage of: men always had an ambivalent attitude towards women (wanting permission to treat them like cattle), and powerful, wealthy leaders of the country had generally a dim view of the majority that are most affected by their decisions (peasants and workers, the poor and lower middle class). In retrospect, they failed to deal with the complexities of ‘freedom of religion’ in a secular democracy, people’s ability to abuse “free speech,” and elected officials acting corruptly with impunity when they pursue the goals of wealthy supporters, rather than working to promote the general Welfare, as intended by the founders of the Republic.

Furthermore, the constitution does not spell out when the courts must take action, dealing with obvious, major injustices, wrongs, and purposeful discrimination without lawsuits having been filed, as is today the case when there is apparent abuse of a spouse, child, elderly or disabled person. Those looking for justice obviously includes many who cannot sue. This is particularly important when injustices are perpetrated to derail democratic processes. When will the court address fake news, obvious defamation, and conspiracy theories which Americans spread with the intent of misleading voters and swaying elections? When is the court addressing an executive’s overstepping the limits of his own power, when, for political reasons, he/she tells obvious falsehoods in matters that lead to deaths, as many trusting citizens follow the spurious, deceitful advice?

We hope you agree that:

Judging in just way and seeking justice refer to what is factual and/or reality-based, and fair and/or equitable, not partisan, following ideologies, dogmas, or some groups’ ‘faith.’

Interpretations of the intent and meaning of the constitution and of precedent require consideration of modern science, broadly recognized, secular ethical principles (which include broad compassionate empathy with no us-versus-them thinking), and pragmatism, with particular consideration of indirect and unintended consequences of a judgment which is to be broadly applied.

Courts must be secular and nonpartisan. If a judgment is to be considered fact-based, fair, and impartial, issues must be discussed until unanimity is essentially reached (with at most one abstaining or dissenting). Obviously, 4-5 or 3-6 decisions are hardly ‘just,’ based on scientific facts and impartial deliberation – such decisions are primarily determined by how many judges have a specific bias. Who would determine by a vote between “Christians” and agnostic scientist to determine whether the world and its forms of life were created a few thousand years ago or evolved over billions of year? In disagreements between justices, expert witnesses must be called that represent sciences and ethical principles; not lawyers who argue about the merits of diverse biases. Experts must help review pragmatic consideration of consequences if a law would be or would have been strictly followed. Again, judges’ votes must never be based on “faith,” dogmatism, or ideology.

Why does the Court accept confirmations of judges known to be ideologically biased and/or religiously dogmatic, unable to declare that they will not consider religious or ideological tenets?

Courts must change course if they want to be respected and lead the country in a positive direction, as the founders of the Republic intended. Persons must not qualify to serve as justices if they confess having ‘faith’ that overrules Enlightenment values and scientific argumentation, or if they believe in the dogmatic ideology of conservative, crude capitalism, which must be considered obsolete (conservative economists have caused rather than foreseen and/or prevented economic catastrophes as well as unjustifiable, tragic inequalities – they have not promoted the general Welfare).

As a prime example of perverted justice, all justices should agree, when addressing women’s healthcare, that It is not justifiable and it is dishonorable:.
•  If justices and politicians practice medicine, that is if they interfere with issues of medical science, ethicsand, and established standards of care, which are the responsibility of medical boards and licensenced physicians; if laws are not based on leading professionals’ guidance; if they disregard that reproductive services are healthcare services.*
•  If justices affirm political decisions that are deceitful and based on some theology – these politicians and judges are not truthful when asserting that specific laws concerning abortion are in the interest of women’s safety; they endanger women; they are designed to please fundamentalist voters.
•  If laws discriminate against poor women – the laws hardly affect the well off.
•  If they affirm laws that are cruel, in abortion cases healthcare professionals being ordered to ‘mess with the mind’ of a distressed women (distressed and emotionally labile due to physiological and psycho-social reasons). Women usually know before becoming pregnant, accidentally or by rape, that a/another child would be disastrous at this time. An agreement to change her decision under such circumstances – agreeing to go through pregnancy and childbirth (and possibly donating her baby to an adoption agency) – should be considered invalid. These attacks are particularly shameful since there is rarely much support for these women and the unplanned/unwanted children. We may compare such behavior with ministers urging terminally ill, distressed patients to withdraw their “Do Not Resuscitate” directives.
•  And they should recognize that judges and politicians are hypocritical when opposing abortions: they want to force poor women to go through undesired-undesirable pregnancies and childbirths while enjoying the benefits of previous and future abortions. If abortion opposing laws would have been successful, if women would not have had billions of abortions in recent decades (many or most illegal) there would be famines, mass migrations, much more violence, and wars.

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* Courts have only a right to regulate medical practice when Medical Boards fail to stop some physicians from practicing in obviously obsolete and/or unsafe ways. Associations of medical specialists formulate what is proper medical practice and Medical Boards are to enforce the proper practice of medicine.

Example of religious freedom:

People following their conscience, which is based on religious morality, often include gross discrimination and abuses (violations of human rights); examples include: discriminating against and abusing homosexuals and unmarried mothers, killing abortion providers; and in the Wahhabist cultures of our Saudi-Arabien allies, killing apostates, infidels and women who were raped or suspected of extramarital sex, and terrorism to fight “vulgar” Western culture.

Regarding employers paying for an insurance that covers employees’ contraceptives and maybe even abortions: not offering women complete health care services is discrimination. (Actually, there is nothing in the Bible that justifies refusing to offer all women effective contraception and abortions.) Employers pay insurance companies which must decide what are appropriate payments; employers may disagree with vaccinations, organ transplants, etc., but we have national professional standards, which insurers and healthcare providers should follow. Living in the U.S., we must pay taxes, but cannot decide how this money is utilized. Members of peace churches attempt to follow the ethical principles that Jesus taught – pacifism, and forgiveness, helping rather than punishing people who comit crimes. Their and others’ conscience is not considered as their tax payments support a punitive legal system, our military and foreign wars.

All justices must ask themselves, to fulfill their duty as described in the Constitutions:

Are there no situations, or, rather what are the situations when the Court has an obligation to be proactive even when nobody sues?

Why did the Court allow the Senate to refuse its duty, vetting the candidate and vote about his appointment, when the President nominated an apparently highly qualified candidate for the Supreme Court opening? Why does the court allow the Senate to forgo the by the Constitution prescribed conscientious vetting process of nominated justices of all federal courts? If a president “vets” candidates according to a promise to his base to overturn accepted laws concerning women’s rights, why are these – “his” judges allowed to participate in discussing and voting on cases that concern women’s health and women’s rights?

Why did the Court accept a judge after he obviously was not truthful in his confirmation hearing? When the partisan Senators refused to properly vet him? The candidate obviously told falsehoods regarding the meaning of multiple terms in his yearbook page, and he affirmed that he never assaulted a woman, when he apparently had many blackouts and could not possibly remember what he did during the blackouts. And would a jury, in a case of contradicting testimony, not consider who has a powerful motivation to lie or tell the truth. The witness in the case was believable beyond any reasonable doubt; implicitly accusing her of not having told the truth is shameful, particularly after the candidate, under oath, had already stated obviously untruths on multiple occasions.

Is the Court never looking at the fact that many decisions by State and Federal legislators do ‘harm and/or take undue advantage of unpopular minorities’? Laws that harm poor women have been enacted with the sole purpose of pleasing a certain segment of conservative voters. By legislators approved laws concerning policies and allocation of resources are often designed to take advantage of the poor and minorities. Gun laws, pleasing a large segment of conservative voters, allow ownership, sale and distribution of all types of weapons that are designed to commit murder; they primarily harm the poor, people living in neglected, run-down neighborhoods with bad schools and inferior social services, and people with mental health problems. Criminals’ access to guns has contributed to violence by police against the poor, mostly minorities; if police forces recoil, even more poor people will be victimized. (Gun deaths among Anglo middle class people are mostly suicides.) The Second Amendment may contain some ambiguity, but it certainly does not imply that people are allowed to own guns to take the law into their own hands, people being able to murder others whenever they decide they have a right to defend their property or ‘turf’. The Second Amendment describes and appears to have envisioned a militia like that of Switzerland.

Sincerely yours,

Heinz Aeschbach, MD,  Walter Aeschbach, MD

compare Comprehensive Family Planning – Abortion Issue   /   compare Women’s Issues  in blog of this wbesite

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