by Daniel A. Cotter, Partner, Butler Rubin Saltarelli & Boyd LLP and Adjunct Professor at The John Marshall Law School
The American Constitution Society For Law and Policy recently launched an initiative, “Love Our Constitution,” with the goal for lawyers, judges and others to lead discussions and make presentations about the Constitution and the Federal Courts during the week of Valentine’s Day. I participated in the conference call that ACS held to explain the initiative and then volunteered to conduct a presentation to the local Boy Scouts Troop.
On Monday, Feb. 13, 2017, I presented the “Love Our Constitution” program to my sons’ troop, Queen of All Saints Basilica Boy Scout Troop 626. About 35 scouts were in attendance and about a dozen adults. We began by handing out copies of the pocket Constitutions provided by ACS and discussing at a high level the document itself, one of the longest standing written constitutions in the world and also one of the shortest, the original being just over 4,500 words. Scouts answered questions about which branch each of the first three articles of the Constitution addressed.
As I went through the slides, we asked questions of the attendees, including their thoughts on why Federal judges served during good behavior, effectively a lifetime appointment. One Boy Scout answered that the intent was to distance the judiciary from the pressures and demands of fundraising and elections and that lifetime appointments allowed the judges to act independently. Before moving to the next slides, we discussed this answer and identified a few instances where the party that had appointed the justices in the majority was not pleased with the decisions. We briefly discussed the Warren Court and the Brown v. Board of Education and criminal defendant rights’ cases and how upset many were. One Scout also raised the recent same sex decision by the Roberts Court, Obergefell v.Hodges.
When the slide for the current Supreme Court was shown, we mentioned that until 1967, when Thurgood Marshall took his seat, no African-American justice had sat on the Supreme Court, and that Sandra Day O’Connor was the first female justice when she became an associate justice in 1981.
We next turned to the Federal Courts of Appeal and discussed that we sit in the 7th Circuit and that our district court is the Northern District of Illinois. I mentioned that an example of a judge who continues to serve and who remains active, regularly hearing cases was 7th Circuit Judge William Bauer, , who is 90 years old and has served for more than 40 years on the 7th Circuit.
I then discussed the vacancy process and the power of the president to nominate, and with the advice and consent of the Senate, to appoint various positions, including Article III judges. We discussed the process and that advice and consent had never been defined.
While presenting the formal slide presentation and after, I discussed with the Scouts the unique times we are living and the Scouts asked about the Executive Order regarding the travel ban. We discussed that we are seeing a struggle over which of the three branches is supreme, with some arguing that the Supreme Court is not “supreme.” I answered questions about Marbury v. Madison and the decision written by Chief Justice John Marshall declaring that it was the duty of the Court to decide what the law is.
The last question was what my views were on which branch of government is most powerful. I answered lawyerly that there are a lot of views, but that my opinion was that in many areas, including foreign policy, the Executive branch was most powerful. The opportunity to present on the Constitution and the Courts proved to me once again that we as Americans should “love our Constitution” and the concise genius it represents.
The article contains the opinions of only Daniel A. Cotter.