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The Awesome Power of the Supreme Court

by | Mar 2, 2017 | Law, The Dialogue

The Supreme Court of the United States (SCOTUS) was, arguably, the most difficult branch of the federal government to define, under the U.S. Constitution. It is an unelected body, and its members serve lifetime appointments. These facts make Justices immune to the whims of the voting population but also formulates the court in such a manner whereby it is practically unaccountable to the people for its rulings.

There should be little doubt that, were Supreme Court Justices subject to the same cycle of campaigning and election as presidents, senators, and representatives, the judicial branch would be incapable of administering untainted and objective judicial rulings. This highest court in the land, however, has come to occupy an elevated position that bucks the ‘checks and balances’ concept that steered the founders’ intent as they created a government in which power was to be equally divided among separate bodies.

The executive and legislative branches of the federal government have several mechanisms of imposing said checks and balances upon one another. There is, however, no constitutional process that allows either branch to impose checks and balances on the judicial branch.

This concern did not escape the founders; if SCOTUS was to be the supreme and final word on all things constitutional, would that not set it apart from – and above – the other two branches? The Supreme Court was intended to be one of three co-equal bodies of government, but there was a danger that the judicial branch would occupy a position of arbitrarily, and with impunity, ruling against the executive and/or legislative branches.

Thomas Jefferson was acutely aware of this predicament, and several his letters include such concern. In 1804, he wrote:

Nothing in the Constitution has given them [the federal judges] a right to decide for the Executive, more than to the Executive to decide for them…The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.

Alexander Hamilton appeared to look at the issue from entirely the opposite direction; arguing that it was incumbent upon the courts to rule on the constitutionality – or lack thereof – of legislation. Hamilton contended that it was the duty of the judiciary to ensure that no laws contrary to the spirit of the constitution were accepted. Denying this authority to the judiciary, he wrote, would allow men in positions of political power to “do not only what their powers do not authorize, but what they forbid.”

A conundrum, it seems: Allow the courts (and, specifically, the Supreme Court) to have the final say over what is constitutional, and you essentially hand them final authority on all matters legal and legislative; deny the courts that authority and the political leadership rules, unchecked and unrestrained.

It very quickly became clear to the nation’s successive presidents that the only way to check the power of the court was to appoint one’s friends, political allies or – at the least – ideological brethren to it.

It is generally considered that the 1803 case of Marbury v. Madison marked the point at which the Supreme Court declared itself empowered to strike down any act of Congress it deemed inconsistent with the constitution.

The delicate state of checks and balances between three co-equal branches of government seems, perhaps, a little out of kilter; the executive branch can be checked, as can the legislative branch – but who checks the judicial?

United States presidents fortunate (or, perhaps unfortunate) enough to find themselves with the opportunity to appoint a Supreme Court Justice can ‘load’ the court in favor of one political ideology. President Obama got to take two bites of the apple and was narrowly denied a third; President Trump will nominate at least one Justice – maybe two and, should he serve a second term, perhaps three. Conservatives can rejoice that SCOTUS will tilt to the right for years to come.

Is this the way it should be, however? Is there no alternative to simply ensuring that an ideological majority on the Supreme Court will steer the nation’s laws in the desired direction?

Perhaps judges should just issue rulings that adhere strictly to our most cherished founding documents and be removed if they refuse to do so.

Now, that would be a check on the Supreme Court – and would also probably open up a whole new can of worms.

Read More From Graham J Noble

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