The Supreme Obstacle

The recent spate of Supreme Court decisions, some good and some bad, focus attention on the critical role which the federal judiciary has come to play in public policy. Civics students have been spoon fed the notion that our Founding Fathers constructed the Constitution upon principles of “separation of powers” and “checks and balances” with three co-equal branches of government.

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The Supreme Court is the only court mentioned in the Constitution and it is the highest federal court of appeal, with original jurisdiction also in a few types of cases.  The idea that the Supreme Court should be co-equal and that it should be checking the legislative and executive branches of government would have struck the Founding Fathers as macabre.  Congress is clearly the predominant branch of the federal government, which is why in early American history the Speaker of the House was as important as the President.  Congress was intended to have much power.  The President was intended to have some power. The Supreme Court was intended to have very little power.  How little power?  Consider what Congress has the power under the Constitution to do to the Supreme Court:  (1)     Congress has the power to create all lower federal courts.  Congress can abolish, change , or expand those courts as it wishes.  If Congress wished to abolish the Ninth Circuit Court of Appeal or all federal circuit courts of appeal, it could do so by a single statute.  This is not a phantom power:  Congress has completely reorganized the federal judiciary, including abolishing federal courts. (2)     Congress may limit the very jurisdiction of federal courts, including the Supreme Court, to hear cases.  There are only a few instances in which the Supreme Court has explicit constitutional jurisdiction to hear cases, and the Constitution says nothing about the jurisdiction of the Supreme Court to interpret the Constitution or even interpret federal laws.  Congress could, for example, deny the Supreme Court the power to rule on any issue related to abortion. (3)     Congress may increase or decrease the size of the Supreme Court.  It has done both in the past.  The nine justices we have associated with the Supreme Court have been as many as ten or as few as six.  If Congress wished to double the size of the Supreme Court, it could.  This is exactly how the United Kingdom has controlled its House of Lords:  When that upper house of Parliament has defied what the voters want, enough peers are created to give a majority to the government’s view. (4)     The House of Representatives may impeach and the Senate may convict and remove any federal judge or justice who Congress feels has committed impeachable offenses.  Historians have written that high crimes and misdemeanors are required to remove a federal judge, but Congress has complete independence in determining whether that is the standard and what that standard would mean if used.  A majority of the House and two thirds of the Senate can remove any justice or judge of the federal judiciary, no matter what. The false idea that Congress has no power to control the federal judiciary is simply a myth which allows Congress to pretend to be helpless when the Supreme Court keeps prayer out of school or allows eminent domain to be used by local government to seize private property when it wishes.  Congress has plenty of ways to reverse bad judicial decisions, if it really wants to do so, but Congress pretends that the Founding Fathers, somehow, intended for the Supreme Court to protect individual rights under the Constitution. The Constitution does not give the Supreme Court that power or role at all, but it does create two balances against an overly bossy Congress.  The President had the power to veto any bill of Congress, and that veto could only be overridden by two thirds of both houses.  The veto has come to be seen as a tool of the President to affect the substance of legislation, but our first president, George Washington, felt that the presidential veto should only be used when Congress passed a bill which was unconstitutional.  The Father of Our Nation, who was also the President of the Constitutional Convention, believed that the check upon unconstitutional legislation by Congress was the presidential veto, not the Supreme Court.  The other great check on Congress was the power of the state governments, and particularly state legislatures – the part of our federal system closest to the people.   When Congress did pass clearly unconstitutional legislation, like the Alien and Sedition Acts (under which a sitting congressman was put in jail), the Supreme Court did absolutely nothing – but the legislatures of Virginia and Kentucky ruled that Congress exceeded its power, and the resolutions of those legislatures worked. How did American defenders of constitutional rights view the Supreme Court?  Thomas Jefferson, the greatest defender of individual rights in our history, wrote:

“The great object of my fear is the Federal Judiciary.  That body, like gravity, ever acting with noiseless foot, and unalarming advance, gaining ground step by step, and holding what it gains, is ingulfling (sic) insidiously [our freedoms.]”

Jefferson was brilliantly prescient.  The federal judiciary, quietly and slowly, has increased its power from almost nothing, when the Constitution was adopted, to almost everything today.  It should interest us that the Fourth, Fifth, Sixth, Seventh, and Eighth amendments in the Bill of Rights all are intended to limit judicial power and that the last two amendments, the “forgotten Ninth” and the Tenth, intended to limit federal power in general.  The first amendment after the Bill of Rights was passed in reaction to a case in which the Supreme Court extended its jurisdiction over the State of Georgia, Chisholm v. Georgia.  This Eleventh Amendment was intended to curtail the power of the Supreme Court by limiting its power by prohibiting it from hearing cases by citizens of one state against another state or by foreign nationals against states.  Our early citizens thought that the Supreme Court was unnecessary to protect our constitutional rights and even dangerous to our constitutional rights.   Were they right?  What has the Supreme Court done to protect the average citizen from government oppression?  What has it done to harm those rights? The ghastly Supreme Court decision of  Dred Scott removed from Congress the power to effectively end slavery in America, and even rendered the power of individual states to abolish slavery ineffective.   The Supreme Court insured  civil war which would end and a century of state discrimination and interstate bitterness. The Supreme Court in Plessy v. Ferguson and similar decisions kept Congress from granting blacks equal right in the racist South. Congress tried to provide for “one man, one vote” in congressional districts as well as end gerrymandering by white people or political parties to frustrate the will of the voters.  The Supreme Court during the 1930s “interpreted” congressional legislation to allow gerrymandering in Mississippi which kept congressional districts unequal in population and also effectively disenfranchised blacks.  Congress tried to protect black voting rights and the Supreme Court overruled that effort.  During the Second World War, the Supreme Court in two separate decisions upheld the internment of Japanese-Americans without due process.  Today, the Supreme Court grants rights to our murderous enemies to sue in federal courts, but the Supreme Court denied the right of perfectly innocent Japanese citizens of America to get out of interment camps. The Supreme Court invented from whole cloth the concept of “de facto” segregation and then approved the busing of young children for hours across large cities to unfamiliar, often dangerous, schools – all in the name of ending racial discrimination (it has not seemed to work, has it?)  The Supreme Court granted an absurd panoply of new legal rights to guilty criminals (the rights granted by the Warren Court, which excluded evidence of guilt, only protected the guilty and not the innocent.)  The consequence, predicted by prosecutors in the 1960s, was a virtual explosion in the rate of violent crime, consider the changes in the rate of violent crime before and after the Warren Court’s grotesque decisions: 1960       .16% 1970       .36% 1980       .59% 1990       .73%       2000       .50% The rate of violent crime is down from its high in the 1990s, but the chances are still four times greater today than in 1960 that you or your loved ones will be beaten, raped or murdered, and that is largely because of surreally bad Supreme Court decisions under the Warren Court. What about abortion?  Was the Supreme Court needed to prevent back room abortions?  No:  Abortions in most states were illegal, but that was because the people, through their state legislators, wanted abortions illegal.  In fact, writers in the 1940s were complaining about perfectly legal abortion mills running in Rochester, New York.  All Roe v. Wade did was to remove the power of state legislators or voters to make any decisions about abortion.  If the Supreme Court next year ruled that a fetus was a human life, then abortion would be murder everywhere, and no legislature, state or national, could regulate abortion to protect the life of the mother or in case of rape or incest.  The history of the Supreme Court in American government and politics has been the story of the governed and their elected representatives losing power by federal judicial decisions which erode individual rights and replace those rights with the personal whims of judges.  We have reached the tragic point where the most compelling issue in our presidential election may be who each candidate will appoint to the Supreme Court.   If we want again a republic deriving “its just powers from the consent of the governed,” then we must begin by reducing the Supreme Court to its proper, minor role.

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