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HAS THE U.S. SUPREME COURT RENDERED ITSELF IRRELEVANT?
(Dec. 7, 2010) — It seems that history – and literature – are known to repeat themselves. I refer to the short story printed in 1894 by a certain A. C. Doyle entitled “Silver Blaze” which contains what must be one of the better-known Sherlock Holmes comments when Holmes mused about:
“… the curious incident of the dog in the night-time …”.
“The dog did nothing in the night-time.” and Holmes responded:
“That was the curious incident.”
That exchange of course brought me to the title for this commentary. Just as in the Silver Blaze story when the Scotland Yard detective interjected his comment, it was abundantly clear that in the recent case of Kerchner et al v. Obama et al that the Supreme Court Justices also did nothing. The real question, then, becomes WHY??
If you studied the legal submissions of Attorney Apuzzo in the case, you would see that not only were the sham objections and legal fictions of “standing,” etc. created out of whole cloth by the Justice Department well overcome by the submissions, but the Court even ignored the words of Chief Justice John Marshall (called “The Great Justice” for good reason) when in Cohens v. Virginia (1821) it was concluded in a unanimous decision that the Supreme Court had jurisdiction to review state criminal proceedings. Chief Justice Marshall wrote that the Court was bound to hear all cases that involved constitutional questions, and that this jurisdiction was not dependent on the identity of the parties in the cases. Marshall argued that state laws and constitutions, when repugnant to the Constitution and federal laws, were “absolutely void.”
Marshall’s exact words on the matter in that case were:
It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is to exercise our best judgment and conscientiously to perform our duty. In doing this on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the Constitution and laws of the United States. We find no exception to this grant, and we cannot insert one. [emphasis added]
… and yet the Justices (or at least six of them) took it upon themselves, like Holmes’ dog in the night, to remain silent, and by doing so committed “… treason to the Constitution …” as Marshall mentioned. Even the two Obama-appointed Justices chose to NOT recuse themselves although they had ample financial, political, and professional standing reasons for doing so. Most people would recognize – at the very least – the appearance of partiality or bias by Sotomayor and Kagan as being beholden to the person who appointed them if not their multimillion-dollar financial windfall that such a lifetime appointment entails (say, 35 years at $150,000 per year, or about $5.25 million apiece).
All of the above makes one wonder if the observation by Sherlock Holmes does not indeed apply here in “The Curious Incident of the Justices That Did Not Bark!!!” when indeed they most assuredly should have.
Then again, perhaps the Justices are no worse that the figurehead who appointed them since he has chosen to “not bark” about his early life records also. The oddest thing is what Holmes had noted – why did no one not notice and pursue the matter???