Features
Musical Chairs – The Supreme Court of the USA
by Vijaya Chanderasoma
According to Article III Section 1 of the United States Constitution, “The judicial power of the United States shall be vested in the Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”
The first Congress of the United States established a Supreme Court with six Justices in 1789. Supreme Court Justices enjoyed lifetime tenure then, as they do now. The Constitution empowers Congress to determine the number of sitting Justices, according to prevailing exigencies of the nation. The number of Justices on the Supreme Court changed six times before Congress settled on the present total of nine in 1869.
The framers of the Constitution expected that the Supreme Court be an independent body, composed of Justices who will interpret and adjudicate on any case before them according to the Constitution and the merits of the case. In short, the Supreme Court is not expected to make the law, it is supposed to interpret and adjudicate the law.
Unfortunately, the modern Supreme Court is not the independent, non-partisan body envisioned by the framers of the Constitution. It reflects the policies and values of the president in power at the time a vacancy occurred. So the composition of the Court depends, at any given time, on a game rather like Musical Chairs, where the incumbent president will appoint to the Court a Justice receptive to his political philosophy when the music stops at the death, impeachment or resignation of a sitting justice.
The music stopped last month when Justice Ruth Bader Ginsburg, a progressive Justice appointed by President Clinton in 1993, died after 27 years of distinguished service. President Trump gleefully nominated a Justice who is undoubtedly well-qualified and, more importantly, is in harmony with the radical right-wing values of the Republican Party.
It has long become a tradition, even a decree, for a sitting president to appoint Justices who are faithful to the values of his own party, and expect that those appointed will conform to party lines, conservative or progressive, in the future. While the tenure of the appointing president is restricted to two terms, Justices, appointed with lifetime tenure as they are, are not so constrained. Therein lies the anomaly that has plagued the independence of the Court in recent times.
Judge Barrett’s confirmation hearings before the Senate judiciary committee began on Monday, October 12, with the Republican controlled Senate hell bent on having Barrett confirmed before the election, and packing the Court with a right-wing majority which will endure during the next generation.
Republicans are using the Supreme Court not to benefit the future of the country but to ensure the survival of their party. The final confirmation vote of Judge Barrett, the result of which is already a foregone conclusion, will be scheduled for the week of October 26, well before Election Day on November 3.
Judge Barrett is an ultra-conservative jurist. She is a “handmaid” (a high ranking female leader) of a cult-like religious community, People of Praise, a Christian organization which opposes abortion, and holds that “men are divinely ordained as the ‘head’ of both the family and faith, while it is the duty of wives to obey them.” She endorses Originalism, “the judicial interpretation of the Constitution which aims to follow closely the original intentions of those who drafted it”.
Originalism demands a strict interpretation of the original Constitution which denies the inexorable progress of societal norms. If this principle is to be taken seriously, we would live in a very different society, one in which segregated schools under the law and governmental discrimination against women, gays and lesbians would be permissible; where a black man would be worth 3/5ths of a white man, and a woman of any color worthless.
Describing her legal principles, Barrett said in her opening statement to the Senate Judiciary Committee: “As a judge on the Seventh Circuit, I have carefully considered the arguments presented by the parties, discussed the issues with my colleagues on the court, and done my utmost to reach the result required by the law, whatever my own preferences might be.”
Judge Barrett has refused to answer hot button issues, posed by Democratic Senators and Vice Presidential Candidate Kamala Harris, throughout the Senate hearing. She protested vehemently that she has no political agenda, and denied she had been subjected to any political pressure by the President on her rulings on the Affordable Care Act (Obamacare), which will be the first case she will hear after her appointment, or on any other issue. She stated that the opinions contained in her papers and opinions in the past, which expressed her strong objections to Roe v. Wade, the landmark Supreme Court ruling of 1973 guaranteeing women’s right to reproductive freedom, and Obamacare, will in no way influence her rulings in the future.
Senator Feinstein pointed out that when Trump announced her nomination, he said that “the elimination of the Affordable Care Act would be a big win for the American people”, both in the short term and for decades to come. A “win” that would strip tens of millions of Americans of their healthcare insurance cover with a fast-approaching, cold, hard winter, in the throes of a pandemic showing no signs of abatement.
Responding to Democratic Vice Presidential candidate, Senator Kamala Harris via teleconference, Barrett made the incredible claim that she was not aware of the Trump campaign promise that he would nominate to the Court a Justice committed to repeal Obamacare. Her response: “I do not recall”. Trump’s anti Obamacare tweets have been, over the years, as self-serving as they have been numerous.
Trump has repeatedly lied that he has a replacement healthcare plan which will be immediately available after the repeal of Obamacare. This so-called “new plan” has been as diligently guarded as Trump’s tax returns. The difference being that Trump’s tax returns do exist and will not be divulged because they will incriminate the president and land him in prison, while a replacement healthcare plan exists only in Trump’s alternative universe.
Barrett concealed her virulent anti-abortion beliefs from the Senate Judiciary Committee in a questionnaire she completed before her confirmation hearings. She has also paved the way at the Senate hearing to repeal Roe v. Wade on the grounds that the 1973 ruling was not settled law, not a “super precedent” and so subject to challenge.
Barrett also maintained that she will make any decisions on potential disputes in the upcoming elections based on the facts of each case, and not on political grounds or presidential pressure.
Of course, every Justice, on nomination to the Court by Republican or Democratic presidents, swear that they will maintain their judicial independence during their tenure; that they will not be swayed by political pressure on the outcome of any case brought before them. And then every one of these Justices, Republican and Democrat, proceed blithely to base their rulings on political and party lines on the cases before them. Everyone knows that they have been appointed precisely because of their complicity of laws/rules dear to the appointing president. Barrett is no exception. She is a prime example of the sycophancy currently demanded of Supreme Court Justices.
Barrett will join the two other Trump Supreme Court stooges, Gorsuch and Kavanaugh, in impeding laws on gun control (Barrett is a darling of the National Rifle Association – the gun lobby), climate change, LGBTQ rights, the minimum wage, compassionate immigration reforms (sans caged children!), social and economic justice, and a host of other progressive, democratic socialist measures becoming increasingly popular, especially with the younger generation of Americans.
Most importantly, Trump needs a packed Court which will rule on his behalf on any cases he will bring in the event of a disputed 2020 presidential election, in the certain knowledge that a captive Supreme Court will gift him a disputed or even a lost election, a la Al Gore in 2000. In fact, Trump and McConnell are getting this confirmation approved at warp speed with this very purpose in mind.
The Biden/Harris ticket has studiously sidestepped responding to questions about changing the composition of the Court. However, packing the Court with Justices of independence and integrity may be the only path available to the Democrats to mitigate the deleterious effects of a partisan Republican judiciary for decades to come; and to combat an impending threat to a return to a pre-FDR America, Jim Crow, depression and all.
After all, Mitch McConnell packed the Court when he denied President Obama’s nominee for the Court, Merrick Garland, even a Senate hearing, even though the nomination was made a full eight months before the end of Obama’s term in 2016. While McConnell is rushing the nomination of Barrett even while a presidential election is in progress.
Trouble is, Democrats will have to win the presidency, flip the Senate and keep the House if they are to seize the power to address the existing inequalities in the Supreme Court. Not an unlikely scenario, given the evidence of current polls.
However, the real test would be to overcome fraudulent efforts by the Republicans to nullify/falsify election results, to legally/forcibly extricate Trump from the White House on his likely defeat, and to mitigate post-election violence which will inevitably follow a Trump defeat.
On an unrelated note, during the Senate hearings, when fatalities caused by a raging Covid19 reached 215,000, with up to 1000+ Americans dying every day, and 30 million Americans unemployed with no prospect of government relief, President Trump was dancing to the music of the Village People classic YMCA at a “super-spreader” campaign rally in Florida.
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There’s an ill more dangerous and pervasive than the Coronavirus that’s currently sweeping Sri Lanka. That is the fear to express one’s convictions. Across the public sector of the country in particular many persons holding high office are stringently regulating and controlling the voices of their consciences and this bodes ill for all and the country.
The corrupting impact of fear was discussed in this column a couple of weeks ago when dealing with the military coup in Myanmar. It stands to the enduring credit of ousted Myanmarese Head of Government Aung San Suu Kyi that she, perhaps for the first time in the history of modern political thought, singled out fear, and not power, as the principal cause of corruption within the individual; powerful or otherwise.
To be sure, power corrupts but the corrupting impact of fear is graver and more devastating. For instance, the fear in a person holding ministerial office or in a senior public sector official, that he would lose position and power as a result of speaking out his convictions and sincere beliefs on matters of the first importance, would lead to a country’s ills going unaddressed and uncorrected.
Besides, the individual concerned would be devaluing himself in the eyes of all irrevocably and revealing himself to be a person who would be willing to compromise his moral integrity for petty worldly gain or a ‘mess of pottage’. This happens all the while in Lankan public life. Some of those who have wielded and are wielding immense power in Sri Lanka leave very much to be desired from these standards.
It could be said that fear has prevented Sri Lanka from growing in every vital respect over the decades and has earned for itself the notoriety of being a directionless country.
All these ills and more are contained in the current controversy in Sri Lanka over the disposal of the bodies of Covid victims, for example. The Sri Lankan polity has no choice but to abide by scientific advice on this question. Since authorities of the standing of even the WHO have declared that the burial of the bodies of those dying of Covid could not prove to be injurious to the wider public, the Sri Lankan health authorities could go ahead and sanction the burying of the bodies concerned. What’s preventing the local authorities from taking this course since they claim to be on the side of science? Who or what are they fearing? This is the issue that’s crying out to be probed and answered.
Considering the need for absolute truthfulness and honesty on the part of all relevant persons and quarters in matters such as these, the latter have no choice but to resign from their positions if they are prevented from following the dictates of their consciences. If they are firmly convinced that burials could bring no harm, they are obliged to take up the position that burials should be allowed.
If any ‘higher authority’ is preventing them from allowing burials, our ministers and officials are conscience-bound to renounce their positions in protest, rather than behave compromisingly and engage in ‘double think’ and ‘double talk’. By adopting the latter course they are helping none but keeping the country in a state of chronic uncertainty, which is a handy recipe for social instabiliy and division.
In the Sri Lankan context, the failure on the part of the quarters that matter to follow scientific advice on the burials question could result in the aggravation of Islamophobia, or hatred of the practitioners of Islam, in the country. Sri Lanka could do without this latter phobia and hatred on account of its implications for national stability and development. The 30 year war against separatist forces was all about the prevention by military means of ‘nation-breaking’. The disastrous results for Sri Lanka from this war are continuing to weigh it down and are part of the international offensive against Sri Lanka in the UNHCR.
However, Islamophobia is an almost world wide phenomenon. It was greatly strengthened during Donald Trump’s presidential tenure in the US. While in office Trump resorted to the divisive ruling strategy of quite a few populist authoritarian rulers of the South. Essentially, the manoeuvre is to divide and rule by pandering to the racial prejudices of majority communities.
It has happened continually in Sri Lanka. In the initial post-independence years and for several decades after, it was a case of some populist politicians of the South whipping-up anti-Tamil sentiments. Some Tamil politicians did likewise in respect of the majority community. No doubt, both such quarters have done Sri Lanka immeasurable harm. By failing to follow scientific advice on the burial question and by not doing what is right, Sri Lanka’s current authorities are opening themselves to the charge that they are pandering to religious extremists among the majority community.
The murderous, destructive course of action adopted by some extremist sections among Muslim communities world wide, including of course Sri Lanka, has not earned the condemnation it deserves from moderate Muslims who make-up the preponderant majority in the Muslim community. It is up to moderate opinion in the latter collectivity to come out more strongly and persuasively against religious extremists in their midst. It will prove to have a cementing and unifying impact among communities.
It is not sufficiently appreciated by governments in the global South in particular that by voicing for religious and racial unity and by working consistently towards it, they would be strengthening democratic development, which is an essential condition for a country’s growth in all senses.
A ‘divided house’ is doomed to fall; this is the lesson of history. ‘National security’ cannot be had without human security and peaceful living among communities is central to the latter. There cannot be any ‘double talk’ or ‘politically correct’ opinions on this question. Truth and falsehood are the only valid categories of thought and speech.
Those in authority everywhere claiming to be democratic need to adopt a scientific outlook on this issue as well. Studies conducted on plural societies in South Asia, for example, reveal that the promotion of friendly, cordial ties among communities invariably brings about healing among estranged groups and produces social peace. This is the truth that is waiting to be acted upon.
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By Sanjeewa Jayaweera
It was on 3rd January 1972 that our family arrived in Karachi from Moscow. Our departure from Moscow had been delayed for a few weeks due to the military confrontation between Pakistan and India. It ended on 16th December 1971. After that, international flights were not permitted for some time.
The contrast between Moscow and Karachi was unbelievable. First and foremost, Moscow’s temperature was near minus 40 degrees centigrade, while in Karachi, it was sunny and a warm 28 degrees centigrade. However, what struck us most was the extreme warmth with which the airport authorities greeted our family. As my father was a diplomat, we were quickly ushered to the airport’s VIP Lounge. We were in transit on our way to Rawalpindi, the airport serving the capital of Islamabad.
We quickly realized that the word “we are from Sri Lanka” opened all doors just as saying “open sesame” gained entry to Aladdin’s cave! The broad smile, extreme courtesy, and genuine warmth we received from the Pakistani people were unbelievable.
This was all to do with Mrs Sirima Bandaranaike’s decision to allow Pakistani aircraft to land in Colombo to refuel on the way to Dhaka in East Pakistan during the military confrontation between Pakistan and India. It was a brave decision by Mrs Bandaranaike (Mrs B), and the successive governments and Sri Lanka people are still enjoying the fruits of it. Pakistan has been a steadfast and loyal supporter of our country. They have come to our assistance time and again in times of great need when many have turned their back on us. They have indeed been an “all-weather” friend of our country.
Getting back to 1972, I was an early beneficiary of Pakistani people’s love for Sri Lankans. I failed the entrance exam to gain entry to the only English medium school in Islamabad! However, when I met the Principal, along with my father, he said, “Sanjeewa, although you failed the entrance exam, I will this time make an exception as Sri Lankans are our dear friends.” After that, the joke around the family dinner table was that I owed my education in Pakistan to Mrs B!
At school, my brother and I were extended a warm welcome and always greeted “our good friends from Sri Lanka.” I felt when playing cricket for our college; our runs were cheered more loudly than of others.
One particular incident that I remember well was when the Embassy received a telex from the Foreign inistry. It requested that our High Commissioner seek an immediate meeting with the Prime Minister of Pakistan, Mr Zulifikar Ali Bhutto (ZB), and convey a message from Mrs B. The message requested that an urgent shipment of rice be dispatched to Sri Lanka as there would be an imminent rice shortage. As the Ambassador was not in the station, the responsibility devolved on my father.
It usually takes about a week or more to get an audience with the Prime Minister (PM) of a foreign country due to their busy schedule. However, given the urgency, my father spoke to the Foreign Ministry’s Permanent Sectary, who fortunately was our neighbour and sought an urgent appointment. My father received a call from the PM’s secretary around 10 P.M asking him to come over to the PM’s residence. My father met ZB around midnight. ZB was about to retire to bed and, as such, was in his pyjamas and gown enjoying a cigar! He had greeted my father and had asked, “Mr Jayaweera, what can we do for great friend Madam Bandaranaike?. My father conveyed the message from Colombo and quietly mentioned that there would be riots in the country if there is no rice!
ZB had immediately got the Food Commissioner of Pakistan on the line and said, “I want a shipload of rice to be in Colombo within the next 72 hours!” The Food Commissioner reverted within a few minutes, saying that nothing was available and the last export shipment had left the port only a few hours ago to another country. ZB had instructed to turn the ship around and send it to Colombo. This despite protests from the Food Commissioner about terms and conditions of the Letter of Credit prohibiting non-delivery. Sri Lanka got its delivery of rice!
The next was the visit of Mrs B to Pakistan. On arrival in Rawalpindi airport, she was given a hero’s welcome, which Pakistan had previously only offered to President Gaddafi of Libya, who financially backed Pakistan with his oil money. That day, I missed school and accompanied my parents to the airport. On our way, we witnessed thousands of people had gathered by the roadside to welcome Mrs B.
When we walked to the airport’s tarmac, thousands of people were standing in temporary stands waving Sri Lanka and Pakistan flags and chanting “Sri Lanka Pakistan Zindabad.” The noise emanating from the crowd was as loud and passionate as the cheering that the Pakistani cricket team received during a test match. It was electric!
I believe she was only the second head of state given the privilege of addressing both assemblies of Parliament. The other being Gaddafi. There was genuine affection from Mrs B amongst the people of Pakistan.
I always remember the indefatigable efforts of Mr Abdul Haffez Kardar, a cabinet minister and the President of the Pakistan Cricket Board. From around 1973 onwards, he passionately championed Sri Lanka’s cause to be admitted as a full member of the International Cricket Council (ICC) and granted test status. Every year, he would propose at the ICC’s annual meeting, but England and Australia’s veto kept us out until 1981.
I always felt that our Cricket Board made a mistake by not inviting Pakistan to play our inaugural test match. We should have appreciated Mr Kardar and Pakistan’s efforts. In 1974 the Pakistan board invited our team for a tour involving three test matches and a few first-class games. Most of those who played in our first test match was part of that tour, and no doubt gained significant exposure playing against a highly talented Pakistani team.
Several Pakistani greats were part of the Pakistan and India team that played a match soon after the Central Bank bomb in Colombo to prove that it was safe to play cricket in Colombo. It was a magnificent gesture by both Pakistan and India. Our greatest cricket triumph was in Pakistan when we won the World Cup in 1996. I am sure the players and those who watched the match on TV will remember the passionate support our team received that night from the Pakistani crowd. It was like playing at home!
I also recall reading about how the Pakistani government air freighted several Multi Barrell artillery guns and ammunition to Sri Lanka when the A rmy camp in Jaffna was under severe threat from the LTTE. This was even more important than the shipload of rice that ZB sent. This was crucial as most other countries refused to sell arms to our country during the war.
Time and again, Pakistan has steadfastly supported our country’s cause at the UNHCR. No doubt this year, too, their diplomats will work tirelessly to assist our country.
We extend a warm welcome to Mr Imran Khan, the Prime Minister of Pakistan. He is a truly inspirational individual who was undoubtedly an excellent cricketer. Since retirement from cricket, he has decided to get involved in politics, and after several years of patiently building up his support base, he won the last parliamentary elections. I hope that just as much as he galvanized Sri Lankan cricketers, his political journey would act as a catalyst for people like Kumar Sangakkara and Mahela Jayawardene to get involved in politics. Cricket has been called a “gentleman’s game.” Whilst politics is far from it!.
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Believe me, seeing certain videos, on social media, depicting action, on the dance floor, at some of these entertainment venues, got me wondering whether this Coronavirus pandemic is REAL!
To those having a good time, at these particular venues, and, I guess, the management, as well, what the world is experiencing now doesn’t seem to be their concerned.
Obviously, such irresponsible behaviour could create more problems for those who are battling to halt the spread of Covid-19, and the new viriant of Covid, in our part of the world.
The videos, on display, on social media, show certain venues, packed to capacity – with hardly anyone wearing a mask, and social distancing…only a dream..
How can one think of social distancing while gyrating, on a dance floor, that is over crowded!
If this trend continues, it wouldn’t be a surprise if Coronavirus makes its presence felt…at such venues.
And, then, what happens to the entertainment scene, and those involved in this field, especially the musicians? No work, whatsoever!
Lots of countries have closed nightclubs, and venues, where people gather, in order to curtail the spread of this deadly virus that has already claimed the lives of thousands.
Thailand did it and the country is still having lots of restrictions, where entertainment is concerned, and that is probably the reason why Thailand has been able to control the spread of the Coronavirus.
With a population of over 69 million, they have had (so far), a little over 25,000 cases, and 83 deaths, while we, with a population of around 21 million, have over 80,000 cases, and more than 450 deaths.
I’m not saying we should do away with entertainment – totally – but we need to follow a format, connected with the ‘new normal,’ where masks and social distancing are mandatory requirements at these venues. And, dancing, I believe, should be banned, at least temporarily, as one can’t maintain the required social distance, while on the dance floor, especially after drinks.
Police spokesman DIG Ajith Rohana keeps emphasising, on TV, radio, and in the newspapers, the need to adhere to the health regulations, now in force, and that those who fail to do so would be penalised.
He has also stated that plainclothes officers would move around to apprehend such offenders.
Perhaps, he should instruct his officers to pay surprise visits to some of these entertainment venues.
He would certainly have more than a bus load of offenders to be whisked off for PCR/Rapid Antigen tests!
I need to quote what Dr. H.T. Wickremasinghe said in his article, published in The Island of Tuesday, February 16th, 2021:
“…let me conclude, while emphasising the need to continue our general public health measures, such as wearing masks, social distancing, and avoiding crowded gatherings, to reduce the risk of contact with an infected person.
“There is no science to beat common sense.”
But…do some of our folks have this thing called COMMON SENSE!
