The U.S. Supreme Court has returned to work after a three-month summer break. As this will be the first term with Justice Ketanji Brown Jackson on the bench, one retired judge shares his thoughts on what to expect.
Still, Paul Summers, a former judge and attorney general for Tennessee, is “optimistic that she’s going to try to do the right thing.”
Summers has worked in the legal field for over 30 years. He was a member of the Tennessee Court of Criminal Appeals and, most recently, a senior judge for Tennessee’s circuit, criminal, chancery, and business courts. Before entering private practice in 2006, he served as a district attorney and state attorney general.
Our ‘Clairvoyant’ Founding Fathers
While Summers conceded that Jackson “might have her own personal opinions,” he said “that does not change what the Constitution of the United States says.” While the Constitution was ratified in 1789, Summers contends that “not only were our Founding Fathers smart, they were clairvoyant.”“They created three separate but equal branches of government,” Summers explained, adding that while “two were completely political, the third branch is, and should be, nonpolitical.”
“That’s the judicial branch,” he clarified, noting that while the executive and legislative branches “run for election for two, four, or six years,” members of the judicial branch are placed by presidential appointment and congressional approval and, “as a whole, they are not political.”
“They are not bound by policies,” Summers explained. “They are not bound by polls. They are not bound by politics or ideology. They are bund by what the Constitution says.”
The ‘Triumph of Originalism’
In an Aug. 4 policy paper, the Senate Republican Policy Committee (RPC) described the Supreme Court’s first full term with the six-justice conservative majority—made possible by President Donald Trump’s nomination of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—as “historic.”
“In addition to its ruling in Dobbs v. Jackson Women’s Health Organization, which has received the bulk of the media’s focus, the court embraced the doctrine of originalism and its role of defending the Constitution in several other significant cases,” the RPC report stated. “Conservative justices ruled to strengthen religious liberty protections, protect the Second Amendment rights of people to defend themselves outside of their homes, reduce the power of unelected bureaucrats, and return power to the people through their elected representatives.”
During her confirmation hearing in June 2010, Justice Elena Kagan said “we are all originalists,” adding that “the Framers were incredibly wise men, and if we always remember that, we will do pretty well, because part of their wisdom was that they wrote a Constitution for the ages.”
Not Bound by Politics
Summers, a self-professed independent, currently serves as chairman of the Keep Nine Coalition. As reported Sept. 1 by The Epoch Times, the Keep Nine Coalition is an organization pushing for lawmakers to amend the Constitution and codify that the U.S. Supreme Court must be limited to nine justices.As Summers explained, several former attorneys general got together about 15 years ago and decided to form a coalition on a nonpartisan, bipartisan basis to preserve the independence of the Supreme Court. What they proposed was a simple, 13-word amendment, saying “The Supreme Court of the Unites States shall be composed of nine justices.”
Of the 15 former attorneys who formed the Keep Nine Coalition, eight were Democrats and seven were Republicans, with Summers being the only independent.
“So, it clearly was bipartisan,” Summers asserted. “They understood what the Supreme Court does. They understood the role of the Supreme Court and they further understood that the Supreme Court is not bound by polls, politics, emotions, or ideology. They try to interpret the Constitution as it stands. They try to interpret federal law as it stands. They also endeavor as human beings to determine whether or not a state statute complies with the federal Constitution.”
Based on the Constitution
According to Summers, “every case that comes before the United States Supreme Court is controversial.” However, “it’s not unusual for them to reverse themselves.”
“Let’s take the Dobbs case for example,” Summers posited. “They basically overruled the previous decision made in Roe v. Wade. The court ruled that abortion is not a federal constitutional right. Its Roe decision was incorrectly decided as were other progeny cases, and the authority to regulate abortion is returned to the people and their elected representatives, which is what our Constitution is all about. The Dobbs decision was based on the Constitution, not on polls or politics. Abortion was not, I repeat, not abolished. The decisions regarding abortion were returned to the states where they belong. This is not the first time that the Supreme Court reversed itself. They’ve reversed themselves over 100 times since 1789. This is a case that has gained a lot of attention, but it’s not the first time.”
In the 1896 case of Plessy v. Ferguson, the court ruled that “separate but equal” was constitutional. But in Brown v. Board of Education in 1954, the court ruled that “separate but equal” was unconstitutional, reversing the previous ruling.
The New Term
During this term, Supreme Court justices will hear challenges that involve race and elections, and in some cases, the cross section of both.
This term, the justices will take up a pair of affirmative action cases regarding college admissions. The cases—Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina—allege the schools discriminate against Asian-American applicants.“Every case the Supreme Court rules on is absolutely important and absolutely important to somebody,” Summers said. “But what’s happened is, particularly with the media, in an era where information is so instantaneous, the Supreme Court will come down with an opinion and within an hour people will formulate an opinion about whether or not that’s right or wrong without reading any briefs or even knowing the case existed.”
As a result of living in the era of the social media information super highway, Summers said Supreme Court rulings become “an instantaneous issue,” which is immediately argued through political ideology on both sides. What Summers and the coalition of fellow former attorneys general want to do is “to make absolutely sure that we have an independent Supreme Court, an independent judiciary that bases its decisions on the law and the Constitution.”
While Summers could not comment on how he thought the high court would rule on the individual pending cases, he is confident that high court will continue on its current course of following the Constitution in its rulings.
“I don’t think anything is going to change in this next session,” he said. “We need a court that abides by the rule of law, that all men and women are created equal and endowed with certain inalienable rights like life, liberty, and the pursuit of happiness. Finally, and most importantly, we need to make sure the judiciary is a check and balance of the abuse of power by the other two branches. That’s what’s important.”
