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Packing The Court

PACKING THE COURT
Institutions Threaten Human Rights

By Wayne Jett © October 12, 2020

     At the recent debate between candidates for U. S. Vice President, Democrat candidate Kamala Harris declined to answer whether a presidential administration headed by Joseph Biden would change federal law to “pack” the U. S. Supreme Court by adding more seats to be filled by left-leaning justices. Packing the Court with politically loyal allies threatens to eradicate constitutional and statutory rights of persons with opposing political views. Sad to say, Americans have seen and endured this tragic and socially destructive experience already in past years, even without expanding the Court above nine justices.

Deplorable Historical Facts

     The Bill of Rights contains numerous individual rights (many more than ten). These rights were adopted as the first ten amendments to the Constitution after the Constitution had already become effective. Each amendment was drafted, debated and intended to protect individuals from federal and state governments over-reaching in ways widely viewed by Americans as abhorrent and unacceptable.

     One deplorable but historical fact is that justices confirmed by Democrat-majority Senate votes and by Republican-majority Senate votes, once on the Court, have voted in ways which nullify individual rights guaranteed in the Bill of Rights. Nonetheless, the Bill of Rights is one of very few – if not the only – formally adopted express protections of personal rights against government over-reach in the world today.

     Yet such luminaries of the Supreme Court of the United States as the recently departed Associate Justice Ruth Bader Ginsburg have derided the U. S. Constitution as badly out-of-date and not to be emulated by those creating new national governments today. As bad as, if not worse than, Justice Ginsburg’s assessment of the U. S. Constitution is the constitutional outlook expressed by current Speaker of the House Nancy Pelosi (the chief official of “the people’s house”). Speaker Pelosi has been quoted to the effect that the Constitution is not something that can be allowed to interfere with or get in the way of governing the nation.

     Sad to say, the unacceptable state of affairs reflected in actions of the Supreme Court itself for decades past too often has been flat-out disobedience of existing constitutional limitations on federal government powers.

Institutional Power vs. Individual Rights

     Please permit one example of federal government over-reach in which I was involved personally, not as the target but as legal counsel for fiduciaries responsible for protecting interests relating to the targeted persons and firms. The name of the case presented to the Supreme Court of the United States was Connolly, et al., as Trustees of the Operating Engineers Pension Trust vs. Pension Benefit Guaranty Corporation, 475 U. S. 211 (1986).

     The issue presented by the case was whether the Taking Clause of the Fifth Amendment (prohibiting the federal government from taking private property for public use without just compensation) was violated by a 1974 federal statute called the Employee Retirement Income Security Act. ERISA created new, substantial obligations by private individuals or firms (employers) to pay money in large amounts to other private parties based on past employment. In simple terms, a federal statute required private parties to pay very substantial amounts of money to other private parties when no such obligation existed absent the statute: a taking of private property (money) by federal statute for private use without compensation.

     The Chief Justice of the Court in 1986 was William Rehnquist, educated at Stanford University, appointed as Associate Justice by President Richard Nixon and elevated to Chief Justice by President Ronald Reagan in 1986. The Court on the whole was viewed as conservative at the time, but counting heads as conservative or liberal in the case of Connolly v. PBGC seems pointless. The Court held unanimously that the federal statute could lawfully require certain private parties to pay substantial amounts of money to other private parties, despite the Fifth Amendment prohibition against federal actions taking private property for public (or private) use without compensation!

     The opinion of the Court was written by Associate Justice Byron White, who had been appointed to the Court by a Democrat, President John F. Kennedy, in 1962. To his credit, Justice White was the only member of the Court to interrupt oral argument by asking counsel for the federal agency (PBGC) whether the issue presented was different from a minimum wage law which applies only to future employment.

     However, when PBGC’s counsel proceeded without responding to the question, Justice White remained silent, did not pursue the point further, and did not address it in his opinion. Instead, he wrote that the Court had previously permitted similar federal conduct despite contentions that due process had been denied.

     Of course, due process is an easy requirement to meet in order to take large amounts of money. The Court’s action amounted to unanimous sell-out of the fundamental protection of the Constitution against government seizure of property – a human right essential to success and survival of the middle class.

Human Effects of Congress and Court

     The Connolly v. PBGC decision of the Supreme Court cleared the way for major financial claims to be made against tens of thousands of small-to-medium-sized employers across America, primarily in construction, restaurant and similar small business industries. A typical employer was a small sand-and-gravel operation in San Diego County established and operated by a man and his family, employing a few hired equipment operators, truck drivers and laborers.

     That employer became an intervenor in the U. S. Supreme Court proceeding by virtue of a San Diego attorney who volunteered his services in order to participate in argument of the Connolly case. The man and family who established that employer had built it through decades of hard work to a net worth of maybe $1 million, perhaps more. The liabilities created against him by Congress’ 1974 law greatly exceeded $1 million; the man died not long after the Supreme Court’s unanimous decision, in a hospital bed suffering from a perforated ulcer.

     Imagine building a million-dollar net worth (measured in 1974 dollars) for your family through decades of hard work, while paying all of your bills and obligations, then one day being informed that – due to a recent Act of Congress – you owe new liabilities to other private parties of more than a million dollars. That is the outrageous conduct rubber-stamped by a unanimous Supreme Court in 1986, despite express protection against such government action in the Taking Clause of the Fifth Amendment.

Institutional Rights vs. Human Rights

     President Franklin D. Roosevelt’s threat to “pack the Court” with additional members in 1937 was effective for its purpose. The threat intimidated two sitting justices (“two switch in time to save nine”) sufficiently to change their votes so as to approve FDR legislation that otherwise would have been held to violate the Bill of Rights. Justices and politicians learned the lesson Biden is attempting to employ now. Will the Court continue to rubber-stamp use of institutional power against human rights ordained by God and reflected in the Bill of Rights?

     The U. S. Supreme Court does not enjoy deciding cases like Connolly v. PBGC; they are potentially embarrassing to justices who like to be seen as protectors of precious human rights. The case never would have been heard by the Court, except for the fact that a federal statute existing at the time gave the complaining parties the right of direct appeal to the Supreme Court. In almost all other private party cases, the complaining party must petition for review and obtain the support of at least four justices of the court.

     Mainstream media gave the Connolly decision very little public attention. And the statutory right of direct appeal used by the Connolly parties to obtain relief from decisions violating fundamental rights was promptly repealed to reduce the prospects of such embarrassment of the Court in the future. The wounds inflicted by the Court on the precious human rights protected by the Constitution but denied by justices of the Supreme Court remain festering today, awaiting opportunities to spread among other Americans targeted by Acts of Congress.