Billionaire Asserts His Absolute Right to Own a Supreme Court Justice: Will He Get Away With It?
Image by Good Bye from Pixabay
Harlan Crow has asserted that Congress doesn’t have the power to regulate or sustain oversight of the Court or its justices
Clarence and Ginni Thomas want to stay on the Harlan Crow and Leonard Leo gravy trains (among others), and Crow’s lawyers are essentially claiming Thomas has every right to continue to act like a corrupt third-world autocrat who’s accountable to nobody, not even the voters and citizens of the United States or — more importantly — the very Congress that created the Supreme Court in the first place.
Senator Dick Durbin is the chairman of the Senate Judiciary Committee, which has both oversight of and writes laws relating to the federal court systems of the United States. Using powers given him by the Constitution, Durbin has asked Crow to account for the “gifts” he has showered on Thomas and his family over the past quarter-century.
In defying Durbin’s request, Crow (speaking through his lawyers) has asserted that Congress doesn’t have the power to regulate or sustain oversight of the Court or its justices — or people or companies that appear to be bribing or otherwise attempting to influence those justices.
He’s wrong.
It was Congress, in fact, which created the Supreme Court in the first place.
Article III of the Constitution defines the federal judiciary. (Article I defines and empowers Congress, the first among equals; Article II defines and empowers the presidency and executive branch, the second among equals.)
Article III opens with:
On June 21, 1788, New Hampshire became the ninth of the 13 states to ratify the Constitution, bringing the United States of America as we know it today into existence. (The Constitution was finally ratified by all the states on May 29, 1790, when Rhode Island was the last to approve the document.)
Congress technically came into being on that day in 1788, although nobody had yet been elected; the Continental Congress thus set elections for the first Congress and the first President during the roughly 4-week period from Monday, December 15, 1788, to Saturday, January 10, 1789, with the new government officially beginning with the swearing in of the President on March 4, 1789.
Once the new Congress and President Washington were sworn in and established in power, Congress then had to create the Court system of the United States, per the opening sentence of Article III of the Constitution quoted above.
They did this by passing the Judiciary Act of 1789, which was debated through the early fall of that year and passed on September 24, 1789.
Congress, thus, literally created the Supreme Court (and the appeals and district court systems) out of thin air that day with the power the Constitution gave them, and then set rules for the Court’s operation, as the Constitution stipulates.
The opening two sentences of the Judiciary Act of 1789 say:
The Constitution further gives Congress oversight and control of the Supreme Court and its functions, as Alexander Hamilton described at length in Federalist 78, which I’ve quoted here at length. And here and here.
Article III, Section 2 of the Constitution lays out the power and obligation of Congress to regulate the Supreme Court (including funding it, determining where and under what circumstances it meets, defining justices’ pay, stipulating the number of justices, etc.) and to limit what issues the Supreme Court may rule on.
It says, unambiguously:
So, now comes billionaire Harlan Crow, who appears to have spent the past quarter-century purchasing the loyalty and votes of Clarence Thomas with lavish vacations, Frederick Douglass’ bible, buying and renovating Thomas’ mother’s home and letting her live there rent-free, sending the child Clarence and Ginny were raising as their own to a high-end boarding school, etc.
When Durbin reached out to Crow, attempting to determine the extent of this apparent influence-buying scheme, Crow’s lawyers essentially told him to go screw himself.
Completely ignoring both the obligation of Congress to “regulate” the Court and the checks-and-balances which that oversight and regulation requires, Crow’s lawyers’ letter to Durbin says:
They go on to cite the Supreme Court’s 1803 Marbury v Madison decision, in which the Court gave itself the power to essentially regulate Congress and the White House (by overturning laws passed by Congress and signed by the President), a power which is found nowhere in the Constitution:
Setting aside the obvious fact that Harlan Crow isn’t a member of the Supreme Court and therefore — even if his lawyers’ assertions were accurate — can’t claim separation-of-powers immunity from congressional inquiries, this brings us full circle to the Marbury decision they’re citing.
Thomas Jefferson was president in 1803 when that case was decided, and he flipped out when the Court ruled it could run roughshod over Congress and the President.
The author of the Declaration of Independence and instigator of the Bill of Rights bluntly expressed his concern to his old friend Judge Spencer Roane, the son-in-law of Patrick Henry and a justice of the Virginia Supreme Court:
President Jefferson continued in full fury: