The Supreme Court Really Let Us Down. No Wisdom, No Courage!

Advocate Amit A Pai

16 Dec 2020 2:36 AM GMT

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  • The Supreme Court Really Let Us Down. No Wisdom, No Courage!

    The title was tweeted by the outgoing US President Donald Trump soon after the Supreme Court of the United States (SCOTUS) refused to entertain a plea brought by the State of Texas challenging the win of President Elect Joe Biden in the States where Trump expected to win, but lost. The reaction of Donald Trump to the election loss is for all to see, and not uncharacteristic of Donald...

    The title was tweeted by the outgoing US President Donald Trump soon after the Supreme Court of the United States (SCOTUS) refused to entertain a plea brought by the State of Texas challenging the win of President Elect Joe Biden in the States where Trump expected to win, but lost. The reaction of Donald Trump to the election loss is for all to see, and not uncharacteristic of Donald Trump – even though uncharacteristic of leaders of a democracy. Back home, when Prime Minister Indira Gandhi was voted out of power in 1977, after about 20 months of the Emergency, she gracefully stepped aside as expected by the Constitution and did not exhibit the despotic tendencies of the immediately preceding months. Although this piece has opened with a political comment, this is not a political piece. This piece is about the cherished ideal of the independence of the judiciary.

    The role of an American President in the nomination of a Judge of the SCOTUS is only too well known, and drew attention more recently when Donald Trump nominated (and the Senate confirmed with Godspeed) the conservative Justice Amy Coney Barrett in the seat of the liberal late Justice Ruth Bader Ginsberg. The confirmation of Justice Barrett, Donald Trump could do in one term what his three immediate predecessors were unable to in two – appoint three Justices to the SCOTUS. At the time of her nomination hearing before the Senate Judiciary Committee, several members of the Democratic party expressed that (Donald Trump's appointee) Justice Barrett could be the deciding factor, if the Presidential Election would come to be challenged before the SCOTUS. Be that as it may, and perhaps taking lesson from its bitter experience two decades ago[1], the SCOTUS decided to reject, by majority, the bid by the State of Texas. What is of significance for a student of law is, not the politics of the decision, but the expression of the independence of the judiciary. Three[2] out of the seven Justices who rejected the challenge to the result of the Presidential in four states were appointees of Donald Trump. But this is not the first occasion, when a President who appointed a Justice has been "disappointed".

    President Harry Truman appointed four Justices[3] to the SCOTUS – all of them his friends and colleagues. Yet, when the landmark judgment in Youngstown Sheet[4] was delivered, famously restricting the powers of the President to seize private property, two of his own appointees formed a part of the majority. Chief Justice Vinson and Justice Minton were in the minority, upholding the President's power. Reportedly, an upset Truman complained "[P]acking the Supreme Court simply can't be done… I've tried it and it won't work…Whenever you put a man on the Supreme Court, he ceases to be your friend."[5] President Eisenhower was more direct about his appointment of Chief Justice Earl Warren. A former Republican Governor California and a defeated Vice-Presidential Candidate from the 1948 US Presidential elections, Eisenhower thought that his Republican colleague Warren would be the right pick for the vacancy caused by the sudden death of Chief Justice Vinson. But with the liberal turn taken by the SCOTUS upon the ascendency of Chief Justice Warren, Eisenhower, reportedly privately told Chief Justice Warren that he had "been disappointed in Justice Brennan and me."[6] Reportedly, Eisenhower said that his appointment of Warren as Chief Justice "was the biggest damn fool thing I ever did" and when asked who had recommended Warren, Eisenhower remarked "I wish I could remember, because I'd like to shoot him."[7]

    Another example was the case of President Richard Nixon. Between 1969 and 1974 (when he resigned from the Presidency), Nixon appointed Chief Justice Burger and three other Justices[8]. However, when his Presidency was shrouded in controversy due to the Watergate Scandal, tape recordings and other material was subpoenaed to aid the investigation. Nixon sought to have the subpoena quashed before indomitable Judge John Sirca of the US District Court, on the ground that he had an executive privilege, but in vain. In appeal before the SCOTUS, Nixon hoped that his appointees would come to his aid – again in vain. In an 8:0 judgment[9], in United States v. Nixon[10], the SCOTUS unanimously ruled that the President enjoyed no such privilege, and had to hand over the tapes and other incriminating material. I have always considered this case as one of the best examples of the manifestation of judicial independence. The direct political fallout of the case was the resignation of President Nixon, 17 days later. What was considered one of the finest hours of the SCOTUS and that of judicial independence, Nixon thought differently. In his memoirs, Nixon recorded:

    "… While I understood the reasons for the decision, I thought that the United States had lost it. I felt that the presidency itself was a casualty of this ruling."[11]

    Although from the very beginning of our Constitutional democracy, Prime Minister Nehru and Home Minister Sardar Patel had reservations about some of the decisions on fundamental rights, it never did reflect in the appointments made (or blocked) – for they firmly believed in the higher purpose of the independence of the judiciary. It was only in 1970s, the Government began packing the Supreme Court of India (SCI) with Judges who would be more sympathetic to their philosophy – in retaliation to the striking down of nationalization of banks[12] and abolition of privy purses[13], and in anticipation of a reconsideration of the scope of the power of Parliament to amend the Constitution reconsidering the decision in Golak Nath[14]. It is well recorded in history that the case of Kesavananda Bharati[15] was argued and decided in a very political surcharged atmosphere.[16] And when the decision went against the Government, the three senior-most Judges[17] were superseded, and Justice A.N. Ray was appointed Chief Justice. Not surprisingly, the Government brazenly defended this action in Parliament, with Minister Mohan Kumaramangalam strongly arguing for the need to have a "committed judiciary" – supposedly committed to the socio-economic agenda of the Government.[18]

    When Justice Jagmohan Lal Sinha of the Allahabad High Court heard the challenge to Prime Minister Indira Gandhi's election, various quarters attempted to put pressure on him. On one hand, he was lured with a seat on the SCI, while on the other hand, his staff was harassed by the CID to know the contents of the judgment. Reportedly, the Chief Justice even told him to postpone the pronouncement of the judgment.[19] Undeterred, Justice Sinha disqualified the Prime Minister. On appeal, the vacation Judge, Justice Krishna Iyer did not give any special concession to the Prime Minister, and followed precedent – granting only a conditional stay on the operation of the High Court's judgment, thereby disbarring the Prime Minister from voting in Parliament during the pendency the appeal. As is well known, on the very next day, Emergency was imposed and our democratic polity turned constitutionally autocratic. Although these acts of the two Judges mentioned had severe political consequences, they were not moved by the consequences as opposed to their duty to the law and what they thought was the right thing to do.

    Famously, Justice Hans Raj Khanna, upheld the right to life to exist even during the operation of the Emergency, contrary to the view taken by four of his colleagues.[20] As a direct result, he was superseded for the Chief Justiceship of the SCI. What makes Justice Khanna's celebrated dissent remarkable is that he was fully aware of what could be the personal consequence when he wrote it. The assault of the independence of the judiciary during the Emergency is only well documented. Across the country, Judges of the High Court who quashed detention Orders under the infamous Maintenance of Internal Security Act, 1971 (MISA) were summarily transferred to other High Courts are punishments. Others who were Additional Judges, were not confirmed. Yet, some Judges continued to do their duty without "fear or favour, affection or ill-will" to uphold the rule of law. Eventually, the SCI, in the Second Judges case[21], took away from the Government, the power to appoint the Judges to the Constitutional Courts to preserve the independence of the judiciary, creating the Collegium system of appointment.

    One takes the concept of the independence of the judiciary for granted. For, one has been indoctrinated with the concept right from civics classes in school, to the many reported judgments of the Court in which the importance of the concept is spelt out. There is no doubt in one's mind that the Constitution has contemplated an independent judiciary. In the divided times we live in, the concept has gained even more traction – more in words than in substance. For instance, merely because a decision of moment goes in favour of the Government of the day, it does not mean the judiciary is not independent, or vice versa. While the tenure of a Judge or the salary she is paid are certainly markers to test the independence, it is also the manner in which the supremacy of the Constitution is upheld. In the illustrative cases above, the SCOTUS as well as the SCI have upheld in each case the Constitution, to the best of what the Judges comprising thought was correct. And this was done without thought for consequences or personal preference – personal or political. But like freedoms, it is upon those who are part of the system to strive to uphold the independence of the judiciary generation after generation. We, the people, in Palkhivala's famous words, have to be "eternally vigilant". Preserving the independence of the judiciary is not a choice or a luxury – it is a necessity for all times to be. From its very inception from the pen of Chief Justice John Marshall, judicial review is a tool to check the power exercised by the political executive or the legislature. And only an independent judiciary can exercise the powers of judicial review meaningfully. For, without an independent judiciary, constitutional guarantees are meaningless. For, without the independence of the judiciary, to borrow President Trump's words, the system would have "really let us down".

    Views are personal.
    (Author is a Practicing Lawyer at the Supreme Court of India)

    [1] The decision of Bush v. Gore, 531 U.S. 98 (2000), a close 5:4 decision, which stopped the recount in Florida and eventually caused the 2000 US Presidential Elections to be decided, is one of the most criticized decisions of the SCOTUS in the modern times.

    [2] Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The insiders credit Senate Majority Leader Mitch McConnell for all the three appointments, and making sure that there is a Conservative Majority on the Bench of the SCOTUS.

    [3] Chief Justice Fred Vinson, Justices Harold Burton, Tom C. Clark and Sherman Minton.

    [4] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)

    [5] See Clare Cushman, Courtwatchers – Eyewitness Accounts in Supreme Court History, TesLaw Publishers, New Delhi, 2011, Page 88.

    [6] Ed. Cray, Chief Justice – A biography of Earl Warren, Simon & Schuster, New York, 1997 at Pg. 336

    [7] Ibid., Pg. 337

    [8] Justices Harry Blackmun, Lewis Powell and his Assistant Attorney General William Rehnquist.

    [9] Justice Rehnquist recused from hearing matter, since he had been a part of the Nixon Administration and closely associated with the cause and the accused. See Bob Woodward & Scott Armstrong, The Brethren – Inside the Supreme Court, Simon & Schuster, New York, 2005 Ed., Pg. 350

    [10] 418 U.S. 683 (1974)

    [11] Richard Nixon, RN: The Memoirs of Richard Nixon, Grosset & Dunlap, New York, 1978, Pg. 1051.

    [12] R.C. Cooper v. Union of India, (1970) 1 SCC 248

    [13] Madhav Rao Scindia Bahadur v. Union of India, (1971) 1 SCC 85

    [14] Golak Nath v. State of Punjab, (1967) 2 SCR 762

    [15] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225

    [16] See George H. Gadbois Jr., Judges of the Supreme Court of India: 1950-1989, Oxford University Press, 2011; Also see T.R. Andhyarujina, The Kesavananda Bharati Case – The untold story of struggle for supremacy by Supreme Court and Parliament, Universal Law Publishing Co., 2011 Ed.

    [17] Justices J.M. Shelat, K.S. Hegde and A.N. Grover

    [18] Granville Austin, Working a Democratic Constitution – A history of the Indian Experience, Oxford University Press, Twelfth Reprint, 2014 Ed., pg. 283; Perhaps this was inspired by the bid by of President Franklin Roosevelt to pack the SCOTUS with Judges who would not defeat his cherished New Deal Legislations. In his 12 years in office, Roosevelt appointed 8 out of 9 Judges of the SCOTUS.

    [19] Prashant Bhushan, The Case that Shook India – The Verdict that led to the Emergency, Penguin Viking, New Delhi, 2017 Ed., Pg. 96-98.

    [20] ADM, Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521.

    [21] Supreme Court Advocates on Record Association v. Union of India, (1993) 4 SCC 441. Although there have been many shortcomings in the functioning of the Collegium System of appointments which have come to the fore, it is submitted that it is certainly a step towards keeping Governmental interference in the appointment process at bay.

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