Today, nominations to the Supreme Court are the casus belli for apocalyptic struggles. It’s understandable. The courts have achieved a god-like status in our political system. A court’s decision is treated as the thundering voice of Yahweh. As demigods, their judgments intervene into every nook and cranny of creation. It was not always so.
Does our Constitution demand the supremacy of the courts? No. Has the judiciary achieved primacy in our constitutional order? Yes. The former is a hot topic of debate in academic circles. The latter is the current reality.
The primacy of the courts is the inescapable result of the way the subject of our government is taught and discussed. Take for example the ubiquitous, and misleading, definition of “judicial review”. Scholastic’s translation would be at home in any public school textbook.
“Judicial review is the power of courts to decide the validity of acts of the legislative and executive branches of government. If the courts decide that a legislative act is unconstitutional, it is nullified. The decisions of the executive and administrative agencies can also be overruled by the courts as not conforming to the law or the Constitution.”
Is it true? Maybe not. Could it be that determining the constitutionality of an act may not be an exclusive power of the courts? The logic of the primacy of a court’s decision, rising above the powers and acts of the other branches, would leave us at the mercy of an unelected cabal, appointed for life. Really, swearing an oath of loyalty to the Constitution upon taking office would essentially mean swearing an oath of loyalty to the Supreme Court, through the meanings it confers on the document.
The other branches (called departments), the executive and legislative, and states would be forced into the thickets of constitutional amendments and impeachment to reverse the ukases of this grand council. Neither of which are likely avenues for success.
Judicial supremacy as currently construed is not prudent nor in conformance with “separate but equal branches” (Federalist Papers, No. 47). The claims of the courts’ primacy is a hot mess.
History gives us a different picture of the courts’ reach. Andrew Jackson was famous for his blunt ripostes. The Supreme Court had just issued its ruling in Worcester v. Georgia wherein it invalidated a Georgia statute governing non-Native Americans on Indian lands. In a letter to John Coffee, Jackson allegedly wrote, “John Marshall has made his decision; now let him enforce it!” Since Chief Justice John Marshall didn’t order U. S. marshals to enforce the decision, he avoided a showdown with the hot-tempered Jackson over the matter. He knew the limits of the Court’s authority and didn’t want to test them against Jackson.
The confrontation wouldn’t happen today because of the expectation of an immediate surrender of the president to the Court, something Lincoln would have found strange. The Dred Scott case is highly instructive in this respect. The ruling created, to put it mildly, an uproar. It led to the rise of the Republican Party, the candidacy of Lincoln, and the first Republican president.
Lincoln’s disdain for the monstrosity of the Dred Scott decision was palpable. In his first inaugural address, with Dred Scott in mind, Lincoln laid out the danger posed by the Court’s claim of supremacy on all matters constitutional.
“… the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, … the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.”
Once as president, he used his executive powers to put the kibosh to the thing. He ordered the issuance of passports to free blacks in direct contradiction of the Court’s finding that blacks weren’t citizens under the Constitution. There’s more. He supported and signed legislation to ban slavery in the western territories. In effect, gutting Dred Scott through executive and legislative fiat.
What would be the reaction if George W. Bush treated Roe v. Wade with as much contempt as Lincoln did Dred Scott? The wailing and gnashing of teeth from abortion absolutists would be heard for miles. The media, the partisan bloodhounds in academia, and the satraps in the Democratic Party – the usual haunts of progressivism – would be howling for scalps.
Jackson, Lincoln, the founders, and almost anyone on the scene prior to the progressives’ mangling of our Constitution, would have recognized what is referred to today as “departmentalism”. It holds that each department has the decisive authority to interpret the Constitution regarding its core constitutional functions. The concept flies in the face of the court’s pedestal placement in a high school textbook.
Bringing the concept to the present, President Trump could simply ignore the Ninth Circuit’s decision on his temporary travel ban executive order. To borrow from Jackson, he could announce, “Judges Michelle Friedland, William Canby, and Richard Clifton have made their decision; now let them enforce it.” Directing foreign affairs and national defense are, if anything, integral to the functions of a chief executive. Without these powers, he’d be as ill-equipped as a eunuch in a pagan fertility rite. What would be the point in having the office?
The potential for the courts to emasculate a president or legislature is real. What is the check on their power if the judiciary has the final say on all matters before it? Point of act: there is none!
Forget about departmentalism. The Supreme Court killed it. The judiciary has conferred upon itself supremacy. In Cooper v Aaron in 1958 – and in other near contemporaneous rulings- the Court bellowed that all governing entities must bow to their will. As legal scholar Matthew Franck wrote about Cooper,
“It is quite another thing to say, as Cooper did, that Supreme Court rulings are ‘the supreme law of the land’ owing to an exact identity with the Constitution itself, and thus binding with Article VI force on all rival interpreters of the Constitution. From this it would follow that Congress and the president, no less than the states, are bound by their oaths to accept Supreme Court decisions as binding expositions of the meaning of the Constitution.”
From here on out, the judiciary has an unlimited veto power on the other two branches.
Appointed for life, they can stray into any issue arising from the plethora of interactions in all of creation. No limit on the subject matter or their power to intervene. The situation is eerily like Rome’s shift from republic to empire. Our courts are seated like Augustus in the Roman governmental order, the wise check on an unruly Senate. In effect, Rome had an emperor. In effect, we have black-robed jurists, appointed for life, with power to command anything, as our new emperors. The only thing lacking is the hereditary principle.
Don’t worry, some court in the not-too-distant future will read it into the Constitution. It’s coming.
With so much power in the hands of a judge, an Armageddon erupts over every Supreme Court vacancy – if, as of yet, they haven’t given themselves the power to appoint their own successors. Our only hope is the seating of judges who will exercise self-restraint, because there are no external ones.
The juiced-up political battle over filling Supreme Court vacancies is a sign of our dysfunction. Filling a Supreme Court vacancy has much greater weight than electing a Congress or President. All sides recognize its importance, but few understand that it was never meant to be that way.
Missing in the debate is the realization that we’re now ruled by demigods. Do we really want to go the way of Rome? Is emperor worship next?
RogerG
Sources:
List of nominations to the Supreme Court of the United States, wikipedia, https://en.wikipedia.org/wiki/List_of_nominations_to_the_Supreme_Court_of_the_United_States
Judicial Review, Scholastic, https://www.scholastic.com/teachers/articles/teaching-content/judicial-review/ – major publisher of curricular materials
“Does the Constitution mean only what the judges say it means?”, Timothy Sandefur, Liberty Blog, 6/30/2010, http://blog.pacificlegal.org/does-the-constitution-mean-only-what-the-judges-say-it-means/
“Epimenides paradox”, wikipedia, https://en.wikipedia.org/wiki/Epimenides_paradox
“Our Overly Sanctified Judiciary”, Richard Lowry, NRO, 2/10/17, http://www.nationalreview.com/article/444775/donald-trump-judge-robart-tweet-was-wrong-not-threat-our-republic
“Judicial Supremacy vs. Departmentalism”, Matthew J. Franck, NRO, 3/23/15,
http://www.nationalreview.com/bench-memos/415856/judicial-supremacy-vs-departmentalism-matthew-j-franck
“Populist Presidents and ‘Demoralized’ Judges”, Andrew C. McCarthy, NRO, 2/10/17, Read more at: http://www.nationalreview.com/article/444786/donald-trump-judges-attacks-andrew-jackson-did-much-worse
“Worcester v. Georgia”, wikipedia, https://en.wikipedia.org/wiki/Worcester_v._Georgia
“The Federalist Papers : No. 47”, The Avalon Project, http://avalon.law.yale.edu/18th_century/fed47.asp