Brett Kavanaugh is the anthesis of what our founders envisioned as a judge of what our US Constitution dictates.
Brett Kavanaugh is NOT impartial; NOT truthful...
How did our nation become almost a fascist dictatorship.
Well Professors of Law; in the United States...just please
Come OUT...and SPEAK...not just write ...SPEAK OUT..
Time to come out of your ACADEMIC CLOSETS...and SAVE
OUR REPUBLIC.....on Commercial TV...which the very very
unenlightened who support our NON REPRESENTATIONAL
Legislative Branch which are supposed to represent all of us
and do not do so because they are bought and paid for by only
And Citizens United and Illegal Voting Districting has done this.
So...Professors...that means You Professor McDonald get
cracking and speak out....ASAP...before the mid terms..
Just Do It !!!!
3
The Court is supremely important now because there is an ongoing assault from the right on the Constitution and on our democracy. Our system of checks and balances is failing and if the Court stands aside or, as has just become more likely, joins the assault, it will not end well.
2
The answer to this democratic deficit is simple. Make it much, much easier to amend the constitution. If you can change the text to keep up with modern times, you avoid turning all political issues into constitutional issues and you don't need an unelected super legislature who can summon up "rights" out of thin air.
Should the Supreme court matter so much? Not if the follow the Constitution and it is Ironic th as t the courts go beyond their constitutional role. We often say thing like the decision "X vs. Y" is the law of the land. The very first line after the Constitution's preamble makes it clear that all legislative powers are with Congress meaning the court has none. "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." But could the law of the land go beyond traditional legislative? It does, but makes no mention of legal precedence. According to the Constitution "
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
But what about court orders and executive authority? That is vested exclusively in the President. "The executive Power shall be vested in a President of the United States of America."
The court does have judicial power, and what is that other than to apply the intended meaning of the law held by those who made it law? Where is the power of Judicial review in the Constitution? Is that a court creation from Marbury vs. Madison?
When only a few very wealthy persons; or the corporate body
of persons who control all the campaign funds which determine
the election of Senators or Representatives..; then the result
is what exists now:
The few wealthiest ...the one percent ...of all of our citizenry
control our Congress and now our Executive and now our
Judicial Branches of US Government....so we are no longer
a Democracy....
Overturning the ruinous Citizens United Law MUST be a priority of our Congressional Legislature...
Hence: Vote for any Democrat or Republican or Independent
who will overturn Citizens United....this will allow our vote to
count.
6
It is not the 1% in its entirety that is the problem, but a tiny subset of bonkers billionaires; among them the Adelsons, the Mercers, the Kochs, the Uihleins, the Spencers, and the Wilks. All interested in subverting democracy and inserting a narrow-minded extreme right-wing so-called “Christian” Theocracy.
2
Mr. McDonald, a SCOTUS nomination is such a big deal BECAUSE “the American people are [not to be] robbed of their ability to have a say about the rules that dictate how they live.”
“Our nation’s founders would blanch to see how different the court is today from their conception of it” BECAUSE the American people have Constitutionally evolved a history of interests that have settled into institutions far more concerned about relationship to existing law than was available when the Founders set up parameters for shaping and implementing law.
As America is now a highly advanced nation of laws, it’s necessary that the SCOTUS have an importance that wasn’t focal before there was so much law by which to orient our social lives.
The history that has taken American constitutionalism beyond the vision of our Founders is the extended “Assertion” of American will, across generations, that has given to existing law the orienting importance that it now has.
The Founders were not establishing the 18th century as the basis for the future. They were establishing the basis for living futures constitutionally—though a constitutionality which would stay alive to make the history of America evolve, not settle in a given era.
@gary e. davis "...through a constitutionality...," I meant to type.
Amazing how childish the left has become. As a moderate, it will be the first time in a long time that I will actively avoid voting for Democrats. Whenever you don't get your way you just cry about the institutions you don't control. Kavanaugh was the least partisan Justice selected in a while and you ruined the guys reputation on false, uncorroborated claims. Now that your fear mongering tactics have failed you intend to de-legitimize one of the three branches of Government because it won't ram leftist policies down our throats... Pathetic. I hope you leftists never come to power again... You claim to be tolerant, your actions are not.
5
The reason the Supreme Court has gained in importance is that the GOP Congress is a do-nothing collection of vassals of a handful of baleful billionaires. The usurpation of Congress was their first conquest, but now they have control of SCOTUS too. The entire government will be a sham unless the Dems can reassert themselves.
2
There is one question Professor McDonald conspicuously fails to address: Why should we expect the "political" branches of government to respect the rights on minorities? Federal judges were granted life tenure in the Constitution specifically to insulate them from political pressures. By definition, when the Court overturns a statute, it is overruling majority will. But if we believe the majority always should get its way, then there is literally no need for a constitution--the political process can determine what the law should be.
The late Justice William Brennan spotted the con in "originalism" years ago: If you believe rights are forever frozen as those recognized in the 1790s, then no new rights will ever be recognized--and no new PERSONS will ever obtain rights.
2
Has it been duly noted by our constitutional scholars that the Constitution never said the Supreme Court can declare acts of Congress and the President unconstitutional ?
So, what happened ? The court itself took up this power early on in Marbury vs. Madison . Seems to me that congress can overrule Marbury are restore what the Supreme Court is allowed to do
2
The die is cast. The Rubicon has been crossed. Any discussion about the Supreme Court at this point is but sound and fury signifying nothing. Under the new religious court, America is in for at least thirty years of backward evolution toward a second Dark Ages. There is an outside chance, however, for reason to prevail. In the near future, we will program the human mind in the computer based on a "survival" algorithm, which will provide irrefutable proof of how we have tricked this survival program with our ridiculous beliefs about just what is supposed to survive - producing de facto minds programmed for destruction. When we see this, we will begin the long trek back to reason and sanity.
See RevolutionOfReason.com
1
Exactly. Roe v. Wade should have been ignore at the outset. More important. "law professor" means what, propaganda artist?
Where are the originalists when you need them?
1
It is sad to say, but the right-wing apologists for subversion of separation of powers are out in full force around this column.
The column is thoughtful...it worth discussing. But the bovine excrement shoveled out by those who attack honest and often scholarly comments from the left by bloviating "what-abouters" seeking to divert attention from Black-out Brett's obvious unsuitability do not constitute "discussion."
American voters are not stupid...we recognize the GOP's desperate attempt to divert attention from a perverted process for partisan gain instead of investing the maintenance of our institutions.
1
@Patrick Borunda Way to write three paragraphs about nothing. When did anyone subvert separation of powers? Oh right, they didn't.
This column was not thoughtful, it was about as thoughtful as a child complaining that nobody should get the shiny toy if they can't have it. That is quite literally what is happening in this article. Democrats lose control over the Supreme Court and now they decide if they can't have it, nobody should. That is the entire premise and its as childish as it sounds.
You are correct, American voters are not stupid. They recognize that the left has long abandoned logic and civility. I think your blue wave will be a blue whimper. By then I am sure you will complain that Democracy itself is subverting separation of powers if you don't get your way.
2
The Supreme Court doesn’t make law? How do you explain how Congress, after holding hearings, getting new data, revised the Voting Rights Act only to have key provisions tossed by the right-wing majority? How do you explain how the Scalia majority clawed back the Citizens United case in order to use convoluted machinations to equate cash with speech and corporations as people, and reverse decades of precedent regarding civil rights, worker rights, and so forth in order to shift power from the people to corporations and wealthy elites? The excuse of being “originalist,” somehow divining what The blessed Founders intended is a crock for many reasons: Founders 1) made compromises (ie. slavery); 2) expected to change with time (ie. amendment process); 3) knew they were fallible; 4) knew they were founding a new experiment in self-governance; 5) could not possibly conceive of computers, space travel, invitro fertilization and assault weapons. But you either believe in the foundational mission statement of the nation or you don’t: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence; promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” Roe wasn’t “wrongly decided” or making law, it was acknowledging that women are not subjects of the state or property of men.
2
The founders did not specify how much influence each branch would have. Three branches, equally divided, or a power struggle.
The Supreme Court has become more “political” as Congress has become more politically fearful. Rather than debating and passing controversial legislation that might endanger their jobs, Congress has chosen to avoid taking specific action. When the Court takes on those issues, which are much harder for it to avoid, members of Congress can claim innocence and blame the Court for “legislating.” If Congress would value their Constitutional obligation ahead of holding on to a free airport parking space, the Court would be left to do what the founding fathers and the Constitution expected it to do.
2
There's one matter that isn’t addressed. The ability to amend the Constitution. It was NEVER meant to be a static law of the ages. But absent the ability to amend the Constitution, the SCOTUS POLITICAL THEATER we have is what results.
1
Although I suspect that Prof. McDonald's politics are considerably more conservative than mine, I agree with much of what he says. Certainly his historical perspective is accurate. And my answer to the question posed in the article's title is like his: No. Liberals have become politically lazy and complacent, so instead of doing the organizing work needed to change the other two branches, they have come to rely too greatly on the SCOTUS to bail them out. Conservatives, much more active and better organized, have responded as one might expect. The Kavanagh confirmation should send a clear signal to those on the left that they have to take action on all levels--especially state and local--to turn things around, and to stop focusing on the court.
6
And the founders intended the president, as I a non-lawyer read the Constitution, to be merely a jumped-up city manager faithfully carrying out the decisions of Congress. (Except for the bit about commander-in-chief, but, hey, they knew Geo. Washington was going to be president so how could they not have included that? Especially since they did not see a need for a standing army, let along a navy. That kind of thing was relegated to a "well regulated militia", remember prof?)
But nice try. The Constitution, like the Bible means whatever you want it to. See the Cheshire cat's take on words if you need a respectable authority to cite.
1
This is an extremely complex issue which can't be solved by simple formulae. In some cases, as in Dred Scott, the political expectations placed on the Court solved nothing, and actually aggravated the underlying conflict involved in the case. In other cases, as in the spate of Civil Rights cases touched off by Brown v. Board of Education, the Court actually helped the political system adapt itself to the pent-up demands of America's racial minorities, particularly blacks. It won't satisfy many readers of my statement to hear that from my point of view the sexual and cultural radicalism behind the decisions since Roe v. Wade have not remotely solved religious and cultural conflicts and have only aggravated them. But that's where I think we are these days, and I have NO clue how this gets solved.
Conservative hogwash as expected from anyone from Pepperdine. SCOTUS has assumed outside importance because the GOP has made any action in the legislative branch toxic to its members. Congress does nothing but raise money for the personal benefit of its members and spend middle-class tax dollars. That's it. They neither address nor solve any problems. As a result the judicial and executive branches are effectively running the country.
3
Perhaps the article's author, Barry McDonald, can explain why Supreme Court justices come only from a few Ivy League universities (currently Harvard, Yale, and Columbia) when there are 237 law schools in the USA, including Pepperdine University, where he works. Perhaps it has something to do with the fact that, since 1989, all US Presidents have also come from only a few Ivy League universities (Harvard, Yale, and Penn), and it is the Presidents that appoint Supreme Court justices. The Supreme Court and the Presidency constitute 2/3 of the US government. So, once again we see how the less than 1% control the remaining 99+%. That leaves only Congress that is not controlled by Ivy League alum. Hopefully, the so-called "populist movement" will have some effect on this situation before it becomes a "French Revolution-style movement".
5
Obviously if the best the US has to send to the Supreme Court these days is controversial Brett Kavanaugh, it must not mean too much.
The Supreme Court’s honor was demoted on October 6, 2018.
4
It’s very hard to believe this was written by a law professor.
He claims that it was in Brown v Board of Education, in 1958, that the Supreme Court asserted its exclusive right to decide the constitutionality of laws. This is absurd. The case was Marbury v Madison, decided in 1803, when John Marshall, the Chief Justice, first asserted that concept, to the great surprise and frustration of his rival, Thomas Jefferson, who was President at the time.
Does the writer really not know about Marbury v Madison? He must know about it, in which case he’s just being dishonest.
7
@Mark Roderick | You (and yours truly) stumble in this particular section of the opinion piece because the professor did not say what happened in 1958 that caused SCOTUS to "[declare] that it was the 'supreme' interpreter of all things constitutional in our system." Was a case decided in the 1958 term that was related to Brown? I have no idea, and that's the author's fault.
I, too, found it odd that Marbury v Madison went unremarked. What was the point of that omission?
Understand this for what it is: an attack on desegregation. Think about it. If that is the price to return to this author's Utopia, as a black American I'm not interested. And I'm calling the author out for it. One other point this author disguises: even he asserts the court should ensure due process; but he then neglects to mention kavenaugh's brazen display of intemperate injudicious remarks. When joined to kavenaugh's partisan appearances only on fox and at trump's rally of a swearing in, it all constitutes blatant violations of due process. All in all this professor is trying to retail a vision of American courts more fitting 1840 Mississippi than where we are and ought to be today.
9
I agree with Prof. McDonald’s statement of the problem: a 5-vote Court majority serving as a ruling oligarchy.
I would point out that finding “implied powers” in the Constitution didn’t start with Roe v Wade, but rather with Chief Justice John Marshall’s most important opinion, McCulloch v Maryland (1819).
McCulloch involved the 2nd Bank of the United States, and whether (a) Congress had the Constitutional power to incorporate the BUS, even though no explicit power said so, and (b) Maryland had the power to tax the debt instruments and promissory notes issued by the BUS’s branch in Baltimore.
Marshall found the BUS Constitutional on two bases: the first, and most important, is the “implied powers” from the general structure of the Constitution.
According to John Marshall, that the implied power to charter banks derives from the general structure of the Constitution is based on the stated purpose of the Constitution to provide for the common defense and national security. The Preamble says that explicitly.
So, implied in that general purpose are all the implied powers to accomplish that purpose. And, a national bank, according to Marshall, is appropriate in furtherance of providing national security: a country has to borrow to fight wars and defend the nation.
The BUS was constitutional based on implied powers from the structure of the Constitution, not on any explicitly written provision, nor the necessary and proper clause.
Prof. McDonald glosses over that.
9
You have confused the confirmation process with the court.
The confirmation process has been turned into political theater performed by octogenarian senators more concerned with their power than the people. They feign concern over lifetime appointments? Christine Blasey Ford was in grade school when Patrick Leahy joined the judiciary committee.
The court is a distinguished institution that serves a vital purpose.
4
The same question this interesting article asks can also be asked about the church, since both are governing institutions exerting their power to protect the status quo of those whose vested interests that control them while also being coerced to acknowledge yet resist the inevitable human change from the society below them that calls into question their moral authority and responsibility. Ditto for countless other organizations.
Keeping these engines well oiled and running efficiently and effectively requires a calculus that's always been as difficult to manage as the weather.
Stay tuned.
Vote.
BTW, riveting photograph at the top!
1
One could argue that one reason for the Court's expanded role in settling political disputes arises from the undemocratic features of the other two branches of government. Equality of state representation in the Senate confers a significant advantage on small rural states, an advantage reinforced by the electoral college, where the number of senators helps determine each state's voting power in electing the president.
Since a solid majority of Americans live in a relatively small number of highly urbanized states, their interests tend to suffer at the expense of their more rural fellow citizens inhabiting the rest of the country. The latter tend to embrace a relatively conservative attitude toward federal intervention in coping with social and economic problems, especially where ethnic minorities are concerned.
This imbalance of power often frustrates efforts of the majority to use federal power to help marginalized groups achieve more equality or to constrain the behavior of corporations. After WII, especially, the unresponsiveness of Congress led urban groups demanding change to turn to the courts as an alternative agent of reform.
Conservatives soon enough showed that two could play this game, creating our current dilemma. But returning the SC to its original role will not solve the problem created by the undemocratic character of the elected branches of government.
18
The real function of the Supreme Court has become providing a buffer between the populist mob and the ruling elite- it is our version of a House of Lords, which was not needed by the Founding Fathers, who, for all practical purposes, had a government that was a House of Lords, without the inconvenience of a king.
According to the thinking of the brilliant historian Yuval Noah Harari,The primary importance of our obsolete constitution (not formed in the context of populist democracy) is as a kind of religious document that holds our country together with a shared belief in an illusion- the presumed wisdom of these nine justices is part of this essential illusion.
The illusion has taken a beating and we are therefore less bound together. The strength of that bond is the strength of any nation which are all the result of shared illusions that bind disparate humans into the organization of states. The greater the conflict of shared belief, the weaker our nation becomes as a whole.
3
There are no checks and balances on the power of the supreme court. Soon after its creation, the court invented judicial review. With simple majorities of appointed justices, the court can rule like absolute monarchies. Thus the court matters too much.
Propose the following changes, which would limit the powers of the court, reigning it into the fold of balanced government.
Require a 2/3s super majority of the court to overturn an act of congress, and to overrule or reverse the court's own precedent rulings.
If we already had such a check on the court, the Voting Rights act and McCain-Feingold would still be the law of the land, and Roe vs. Wade would not face the current threat.
These "checks and balances", plus term limits for all SCOTUS judges will go a long way to balancing the court's role in government, something that would be better for our democracy.
It is easier and more democratic for citizens to change the congress in order to change or remove a law, than it currently is for our citizens to endure partisan court rulings lasting generations in hopes the supreme court might someday correct itself.
10
The only positive outcome of the election and presidency of trump is that we are now seeing the frailties of our government. We knew the court could be politicized but with the Kavanaugh nomination and hearings, including his 3 days of tutoring from the WH, we saw the extent of that truth.
Enter then our dysfunctional Congress who have thrown even the appearance of bipartisanship out and replaced it with political anger and divisiveness playing to a crowd of 1.
Each day I awaken to more news that trump and his party are indeed ruining our country - from the courts on down. Who will save us?
7
A better way:
It would require a Constitutional Amendment,
but here it is:
Term Limits for all federal judges, including the Supreme Court.
For the Supreme Court:
Nine Justices/Judges.
Each Justice/Judge:
One single 18-year term -- not renewable.
Each Justice/Judge assigned to one slot.
One slot expires every two years, on a staggered basis,
beginning and ending in odd-numbered years,
and a new Justice/Judge is appointed to that slot,
and the single (non-renewable) term of that Justice/Judge expires 18 years later.
e.g. slot #1 starts July 1,2019, expires June 30, 2037.
slot #2 starts July 1, 2020, expires June 30, 2038.
slot #3 starts July 1, 2021, expires June 30, 2039.
etc.
Among other things,
A President would thus get to nominate two Judges/Justices during a single Presidential term of 4 years,
and, if the President is re-elected, would get to nominate two more during the second Presidential Term.
Thus, if a President was elected twice -- two Presidential terms (4 years each, total 8 yrs), then total 4 Supreme Court nominations.
Lower Court judges: one single 15-year term and either one re-appointment for another 15-year year or (in the case of District Judges) one 15-year appointment to an intermediate Appeals court.
Every nomination (both Supreme Court and lower courts) subject to Senate ""veto" (rejection) if veto exercised within 30 days of submission of nomination. If Senate fails to act (confirm or reject) within 30 days, then "default" is confirmation.
10
While I disagree with the history presented in this op-ed, I basically agree with Prof. McDonald’s basic argument that the Supreme Court should not be so dramatically impactful on definition of the character of an evolving America, which should be left to elected bodies.
As to the history of aggressive Court intervention, it really began with the liberal Earl Warren Court, beginning in 1953 when Warren succeeded Fred M. Vinson as Chief Justice. The earlier courts that so plagued FDR’s New Deal attempts to transform us did not primarily impose personal views of the sanctity of markets, but simply reflected a sanctity that was very evident in the Founders’ thinking and even in the Constitution. For instance, the constitutional prohibition against states erecting trade barriers against the goods and services of other states testifies strongly to this intent to safeguard markets. In this, those earlier courts were acting as originalists challenging legislation and executive action that sought to take the country in directions inimical to original intent – without the bother of amending the Constitution. Warren, on the other hand, sought to interpret the Constitution in facile ways – also without Congress and the states amending the Constitution – to impose new precepts that his Court deemed more enlightened. It was a classic case of government by nine old, unelected men who served for life during “good behavior”.
As a general matter, the history of the Court from the …
1
… latter-half of the 20th century forward was a history of progressives seeking to transform a nation and people not aligned with but in spite of a Constitution that is basically a conservative document seeking to LIMIT the powers of federal government; and of the battles to re-impose limitations on those federal attempts. Now that we have what appears to be an originalist, textualist Court, and increasingly an entire federal bench with similar convictions, and those courts are likely to hold power for decades, we see arguments surfacing from the left that perhaps our federal court system shouldn’t be so powerful. Imagine my astonishment.
However, I agree. What the Supreme Court has been doing for 70 years is the most UNdemocratic behavior our governance has tolerated in all our history, with the sole exception of slavery. And it’s not mitigated by the reality of a Court comprised today not of nine old men but of six old and aging men and three thoroughly charming women of indeterminate age. But this requires that Congress assume its legitimate role as that definer of American culture, insofar as it CAN be defined by government and at a national level. That has always depended on the historic quality of its leadership, which currently may be at its nadir in our history, on BOTH sides.
Power seeks vacuums. For a long time now, Congress has been a Hoover upright.
2
As a lawyer, and as one highly unlikely to agree with anyone from Pepperdine University, I’m sorry to say that I agree with Professor McDonald. We are a nation of Constitution fetishists. The Constitution was never a manifesto, though all ideologues treat it as such, but a charter for organizing government. We now regard nine lawyers in black dresses as the high priests of our civic religion, which is all the more ridiculous as Republicans have turned the court over to its own party operatives. To a nation living in Oz, the first step is pulling aside the curtain that obscures our Great Ones in Robes. The next step should be amending and clarifying our 229-year-old Constitution to insure that the political branches answer to actual citizens and that, as a result, the federal judiciary need be no more political than traffic court. Not gonna happen as long as we treat the Constitution as something supernatural, but it would be good to realize how superstitious we have become.
39
@phillygirl Good comment, but the putdown of Pepperdine was unnecessary.
It is more accurate to say the Supreme Court has filled the gap left by the failure of Congress to fulfill its intended role.
This is more than just a shifting of power. The Congress can craft policy as it ought to be. The Court can only prevent policy as it ought not to be.
The distinction is of overwhelming importance. Congress can give full expression to our intended rights and privileges of citizenship. The Court can only express the absolute minimum rights below which we can't be denied, and no privileges at all.
10
@Mark Thomason
It's a rare occasion when I'm forced to disagree with you. But the Court, since Earl Warren, has conferred material privileges on classes, not simply guaranteed a floor of "rights".
2
@Richard Luettgen
I suppose the first class so benefited was 'uppity blacks.' Just which others do you have in mind. Perhaps 'women facing back alley abortions' and maybe now 'gun-crazed white males' Of course, it has refused to act in favour of 'Democrats screwed out of an effective vote by a GOP gerrymanders', so all is not yet lost.
The problem is not a hyperactive Court, but a moribund Congress -- bought by lobbyists, paralyzed by Gingrich-McConnell ideas of 'take no prisoners' 'make no compromises' partisanship. It is not helped by the end of the draft -- whatever its defects, and they were many, it assured that many Americans had a common formative experience that put Brooklynites and guys from Iowa into close cooperation with folk from California and Mississippi. Today war is made by a Congress and a middle-class that have no skin in the game. That is not healthy.
In short, the Court is a symptom of democratic rot. It is not the problem. De Tocqueville would understand.
What a strange claim -- that it wasn't until 1958 that the SCOTUS declared itself the supreme arbiter of things constitutional.
Marbury established clearly that when the two other branches of government are in conflict over the meaning of the Constitution, the SCOTUS is the only body capable of, or authorized to, decide the matter.
Conservatives like to claim that judicial review was an invention, but the Federalist Papers and Founders notes describe in graphic detail how that matter was anticipated and discussed. The only validity to this claim is that is that the Constitution didn't mention the Court's power to resolve conflicts, but then it didn't mention any power to declare black people as property, or to abolish slavery either.
This thesis only makes sense if one subscribes to the theory of "that which is not permitted is prohibited."
3
@Sequel Not quite accurate. In Marbury the Supreme Court said it had the right to opine on what is constitutional and what is not. The other two branches said, "So what?" In Cooper v. Aaron (1958) the court said it is supreme, that effectively all other branches and levels must recognize Supreme Court decisions as the law of the land.
2
No mention of Marbury v Madison?
SCOTUS found President Madison’s refusal to deliver a commission from the previous (Adams) administration to William Marbury was illegal, but did not order Madison to give Marbury his commission via writ of mandamus. Instead, SCOTUS said the Judiciary Act of 1789 enabling Marbury to bring his claim to the Supreme Court was itself unconstitutional, since it purported to extend the Court’s original jurisdiction beyond that which Article III, Section 2, established.
Marshall said a writ of mandamus was the proper way to seek a remedy, but concluded the Court could not issue it. Marshall also said the Judiciary Act of 1789 conflicted with the Constitution. Congress did not have the power to modify the Constitution through regular legislation because the Supremacy Clause places the Constitution before the laws.
Marshall, thereby, established the principle of judicial review, i.e., the court's power to declare a law unconstitutional.
I think it needs to be recognized, and acknowledged, that the Constitution of the United States was conceived as a very conservative expression of governance.
The writers the Constitution were concerned about protecting the rights and privileges of the top 1% of the day by limiting the political and voting power of the bottom 99%.
Today's “Originalists” are concerned about maintaining the power of the current 1%, not about uplifting the remaining 99%.
7
The Court may be unelected, but its processes are more trustworthy than a plebiscite. Two sides get equal time; indisputably false statements aren't abided (imagine a lawyer claiming "alternative facts"!); decisions must be explained in detail. Given where populism has taken us, maybe there's reason to put trust in a court.
4
The Supreme Court hears very few cases. Most cases go to the lower courts where Trump just had 15 more Judges confirmed and another 40 or so will be confirmed before the end of the year. More again next year as it seems more than likely the GOP will actually increase it's majority in the Senate and perhaps even hold the house.
The vitriol the democrats and news media like CNN attacking people who support Trump is going to hurt the Democrats. They attack people because they have no policies to offer. Reject & Resist is not a policy I would vote for.
2
@Mr Chang Shih An I am keen student of American politics too. I have friendship and family links to 30+ families in the US and studied their system of government at university.
My thoughts about the Supreme Court's importance is expressed in two ways - I think that the Republicans saw the importance of the Supreme Court under Justice Warren and the great changes they helped to engineer and saw that they could do the same in time if they "packed the court".
Secondly, I think it is the gerrymandering and voter supression in the other systems of government that have lead to this situation. It is known that a lot of progressive policies are popular yet the levers of government at most level are held by Republicans whose views do not reflect most of America. Therefore, the court is seen as a "way around" the fact that congress is either chosing not to exercise its power (i.e. reigning in Trump in a variety of ways) and the fact that it does not represent the views of the majority of Americans
4
@Patrick Borunda
A lot of people like myself hold dual citizenship.
Immigrants are allowed to become US citizens while keeping their other citizenship.
Do you not accept my comments as being honest? Even the NYT admits that the GOP may increase its majority in the Senate. The house is going to be closer perhaps than people think and it's possible the GOP or the Dems could take the house. We find out on election day. It seems a few democrats found that seats they thought they would win are not being contested and could go with the GOP.
US citizens don't need to be in the USA all the time to cast votes. That's why we have a postal vote system. :)
@Cattydcat. In your studies, you apparently missed an important point, the Warren court wasn’t supposed to engineer great changes. That is the job of the legislative branch. There is also no requirement that the legislative branch do anything about issues just because loud groups want something done.
The Warren court created the modern conservative movement. The Roberts court might well teach liberals a fact that conservatives learned the hard way, the only points of view that matter are the ones expressed at the ballot box.
In an increasingly litigious society like in which we no longer legislate statutory law with civility, we rely on attorneys and judges.
Cases appeal all the way to the Supreme Court.
We’ve arrived at this time when the man in the White House wants a Supreme Court that will do his bidding.
4
If the Founders wanted the Court to play a smaller role in interpreting the Constitution, they could have done us a favour and written a Constitution that was less in need of interpretation.
Seriously, the reason the Court's role has expanded so much is because the Constitution is still frozen in the late 18th century, but our world—and the government our world requires—has changed considerably since that time.
Two things in particular are vastly different: First, our beliefs about which human rights are fundamental have evolved dramatically, leaving many rights we feel are essential unenumerated in the Constitution. Second, the role a modern federal government needs to play in domestic affairs has vastly expanded, though the Constitution was written assuming the federal government's role could be limited primarily to governing international affairs and managing the relations between states.
These changes in our attitudes toward rights and in the necessary role of a modern federal government have left our Constitution inadequate to the demands of today's nation. In addition, the Founders, with no experience of a modern democracy to guide them, did not get everything perfect in their first iteration, leaving some gaps and ambiguities in the text, and maybe making the Constitution too hard to amend.
With an inadequate and hard-to-change Constitution, we are forced to appeal to the Court to amend the Constitution by interpreting it the way we wish it were written.
27
@617to416
"A Constitution in less need of interpretation"? Sounds like an "originalist." "The law is the law." Or Lewis Carroll's Humpty Dumpty. "A word means just what I choose it to mean; neither more nor less."
I very much agree. The constitution is very vague in many places and reflects the think of a bygone time.
Read the Swiss constitution and you’ll see a striking difference between their modern constitution and our antiquated one.
https://www.admin.ch/opc/en/classified-compilation/19995395/index.html
3
It should be up to Congress to legislate controversial issues, but this unwieldy, and ever changing cast of characters spends most of its time scrambling for reelection to two year terms in office.
SCOTUS fills the legislative void left by congress, picking and choosing issues with the luxury of time, and an authority granted by its concentration of power. When SCOTUS makes a mistake, as history has proven it has, it tends to be intractable. When congress makes a mistake, it can sorted out and modified, though not without difficulty.
Congressional terms should be extended to four years to give legislators time to figure out what they're doing before the next election is nipping at their heels.
3
@Reed Erskine Looking from across the pond, i think that looks exactly right. I read about the situation in Georgia at the moment - clear voter suppression and nothing seems to stop it. Democrats have got to turn out their vote just to try and stop the gerrymandering - they are caught in catch 22
2
It matters to every American woman, whether or not she agrees with the decision. The court has become to primary means of ensuring the rights necessary for women's genuine economic participation, as the legislative and executive branches, persistently dominated by a large number of men, along with the inherent elective churn providing some measure of cover against constituents pressure, do not see fit to ensure or enshrine these necessary rights for half the population in law.
1
The founders did not like political parties; the Electoral College was an institution that made sense only in their absence. What they wanted and expected was quickly superseded by events in many areas.
They had a hefty suspicion of democracy and the people, and not nearly enough suspicion of the effects of owning people on the owners' perceptions of reality and morality.
They did not appreciate how technology would change the meaning of such terms as "speech" or "interstate commerce".
2
I agree with Mr. McDonald. Why not apply the 10th Amendment to a woman's right to choose? States have jurisdiction over marriage, so why not let states decide on keeping or scrapping Roe? If the Supreme Court makes abortion a federal crime it will result in back alley abortions and deaths of women. Even if a woman who wants to end her pregnancy in a state that prohibits abortions, she should have the right to travel to a pro-choice state. Republicans are always championing states' rights. They should back up their assertions by empowering states to sort out the right to choose issue.
1
@nzierler as a New Yorker, I prefer that our available medical resources be accessed by the women of New York first and foremost. Secondly, as women still are typically underpaid, many do not have the financial ability or the logistic support to travel (the majority of women seeking elective terminations are already parents, often single). This essential, necessary right needs to be readily available nationally. If a state has a problem with that, let them raise revenues and offer support programs that serve to enable women to raise an additional child they otherwise realize they couldn't. It's a long term commitment, and I don't see that happening anywhere.
There is also 5heissue of medically warranted terminations at any stage of a pregnancy. That has to be available to preserve the life and health of the woman, who is an adult citizen with full rights.
4
@nzierler There is exactly zero chance the Supreme Court will criminalize abortion. The only question is whether it will allow the states more latitude to restrict it.
1
@nzierler: The only thing the Supreme Court could do, is to overturn Roe v. Wade, i.e., that women have a Constitutional right to choose, and leave it up to the states, but I don’t think they can issue legislation that abortion constitutes a federal crime. Anti-choice states already make it nearly impossible for poor women to obtain an abortion within their state, and poor women do not have the means to travel to a pro choice state.
It's not just a problem that the Supreme Court makes policy for the nation; the use of litigation at all levels of courts to solve social problems has severe limitations because it's an undemocratic process. In periods of our history where Congress is paralyzed by divisions--or where one party rule ignores basic rights of the other side--citizens and corporations have access to the courts to resolve disputes because no one else will. And so even though Professor McDonald is right that this is far less than ideal and not what the Founders envisioned, it turns out to be better than the alternatives.
2
@Roy Lowenstein
The Democrats always go to court because they cannot pass legislation as people do not support their liberal views. This is why the Democrats want to pack the courts with judges with liberal agendas rather than judges who follow the law. It is for congress and senate to pass laws.
3
@Mr Chang Shih An: Americans don’t need foreigners to explain American government, politics and the legislative process to them.
@Mr Chang Shih An That is just false. The majority of Americans support Democrat policies - the issue is voter supression
The difficulty is that having Congress do more means actual governing, which risks alienating voters. It is much easier to rail against "them" (whichever side you're on) than to perform the nitty gritty of governance. Pushing policy off to the executive (i.e., the massive administrative bureaucracy) or SCOTUS frees Senators and Representatives from governing and allows them to focus on fundraising and reelection.
1/“law of the land”2/As time went on3/One way or another
The three above are words from the article. It is very good this point of view was expressed. However, were has the legal profession been in the past 30, 40, 50 years, etc...
I have fought many cases in my life and been let go from many positions for I fought and those around me sat in silence or protested to save their positions, or,,,,,,whatever many of the essentially wrong reasons. Now, as in the 1930's we have a growing problem that the majority simply, essentially does not understand or have the interest or time to read case law.
2, 400+law professors signed on to protest Mr. Kavanaugh (excuse my not writing the word "Justice"). It will help if each and everyone work with what they know, understand, and have an interest in - law in this case - and minimize their fears and do humbly each day what needs to be done. I will not judge them for I do not know their entire life, but be what is required of the legal profession - honesty and hard work.
Yes, I have a PhD in Constitutional Law specializing in human rights. I knew there was a serious problem at least in 2000 (Bush v. Gore). I am not American but of America in that America for so long was working to be an example. It still is, but now an example, by circumstance, what happens when the people have it harder without also the creativity and help from those who should know the law and/or those who are otherwise systematically empowered.
I want America to be.
1
US politics cannot agree on basics. The GOP rw extremist party holding our 3 branches has beliefs opposed by many or most citizens--- re taxes, health care, education, jobs, pay, climate change, etc.
See Washington Post article ---
“Selecting a Supreme Court justice doesn’t have to be a battle royal. Here’s how other countries do it.”
"They “pick judges with less controversy---the choices aren’t seen as the apex of a political struggle with results to endure for a generation.
In many countries judges are selected by legal and parliamentary committees. The court isn’t seen as starkly ideological terrain where the nation's toughest questions will be adjudicated.”
But the US lacks political agreement on basic human and economic rights for citizens that other democracies have reached to a greater extent. So their courts don’t have to rule on laws to protect voting rights, health care, abortion, labor union membership, etc.
And crucially--- their highest courts don’t equate unlimited corporate campaign money with ‘free speech’ per their constitution. They don't turn over their elections to corporate sponsorship.
This important underlying factor is widening our divisions, but is left out of the discussion.
9
Logical next step for the left, erode authority.
1
@Rfam
Whose authority and what is its source? Trump, and Trump alone? The very hallmark of authoritarian rule.
1
When such vital matters of social policy are determined by a handful of unelected justices and their interpretations of malleable terms like “liberty” and “free speech,” the American people are robbed of their ability to have a say about the rules that dictate how they live.
Genius. Nothing short of genius. Judges say not to laws, that violate the constitution. Nothing else. Ever.
Bravo!
No Brown, no Roe. We would have got it right on our own, and we all then would believe it. Forcing it divided us, when know we would have got it right.
We ended slavery without courts. Let women vote without them. Left to our own America is amazing!
3
@EWG
Perhaps we should deal with other important problems the way we handled slavery.
I assume that lack of column space is the reason that Professor McDonald left out John Marshall’s Marbury decision. It was Marshall that first expanded the Court’s reach. I am in agreement that the modern Court has done too much legislation. The Holder decision was nothing short of asinine.
4
What the Founders wanted by way of a Supreme Court is unclear & the language of the Constitution does not clarify it. Nor do the debates on ratifying the Constitution add clarity
The problem is that the foundational documents were all drafted primarily with a focus upon the then prevailing exigencies be it the Articles of Association in 1774, the Declaration of Independence, the Articles of Confederation & the Constitution in 1787. For example, the Articles of Confederation yielded to the Constitution because: the federal government could not directly raise revenue, interstate & transnational commerce as well as naturalization needed to be uniform in all states & states should not discriminate against creditors citizens of other states. Slavery required compromise so that in enacting the Constitution those both pro & against could claim to be winners - direct taxes were required to be apportioned
John Marshall with James Madison & Bushrod Washington got VA to ratify the Constitution; Madison with the Federalist convinced many to support the Constitution - so when Marshall, as Chief Justice, laid the foundation for the Court's position in Government didn't he know & do what the Founders wanted?
Or did all go wrong when we strayed from Lincoln's understanding of the role of the Court as stated in his first inaugural address?
I believe Lincoln had it right; Congress can enact laws that challenge the Court's interpretation of the Constitution if wrongly decided
4
I appreciate the intellectual honesty of this piece. My one point of disagreement is probably Brown. The one right that should be inviolate is a right to participate in democratic process (this includes basic civil rights based on the protected classes of the 14th amendment) or the entire structure is corrupted. But, since law is administered by humans, this is a VERY hard line to expect nine of them to police.
In it's history, the SC very early on took the role of a super legislature on very important issues, and I am deeply uncomfortable with a politically unaccountable body making HUGE social policy decisions without a very clear mandate. This means sometimes people will be horribly mistreated by democratic process, but the other alternative is tyranny.
For clarity, I say this as a person with extremely liberal policy preferences.
3
Congress being utterly dysfunctional, the power of the Supreme Court will only increase in the foreseeable future.
Scarier, still: with a long-term ideological majority on the Court, the GOP now has even more incentive to obstruct, play dirty, and erode the legitimacy of the legislative branch.
5
The only thing Supreme about this court is it’s lack of relevance. It’s now home to 2 sexual predators and 1 illegally placed justice. It’s nothing more than a Republican controlled wing of government.
Good riddance, but unfortunately, that will never be ...........
8
As good of an argument for real democracy as any I've read lately.
The Supreme Court matters so much only because the progressive left seeks to corrupt the intent of the writers of the Constitution.
As clearly explained in the Federalist Papers, those gentlemen saw the judiciary as the defender of the Constitution.
Unlike the progressive left, who seek to make it a third arm of the legislature, and also, a tool by which extra-constitutional rights may be granted to the left's favored classes of citizens by bypassing the legislative process.
The professor knows this, yet fails to mention it.
How odd.
The Kavanaugh controversy was about exactly that: defending the Constitution from the Democrats.
4
@Objectivist
Well, you are taking full advantage of your First Amendment rights.
Your argument may be absurd, your bias blatant and your willingness to enable GOP subversion of the separation of powers egregious...but you have the right to say any little old thing that creeps into your brain.
1
@Objectivist
You only got one adjective in-- "progressive." How about progressive, Socialist, liberal, radical, anarchist mob-like leftist Democrats." What are Republicans trying to conserve other than their wealth, power and privilege?
Certainly not the environment. But the antonym of liberal is illiberal.
1
So the judicial branch is too powerful, the executive branch is too powerful...and the legislative? Obviously that branch is broken. That makes it three for three. Guess we should have a revolution.
They also wanted innocent until proven guilty -- something that seems to be lost now on Democrats.
3
@JW - Kavanaugh's hearing was not a trial, it was just a job interview. And after hearing what various old friends and colleagues, and other females who encountered him, said about him, no-one in their right minds would have employed him.
5
@Alex Leach
Ridiculous comment. Justice Kavanuagh has the backing of every woman who he went to school with or worked with him in any professional capacity including many liberal women in the legal profession. Hus judicial opinions have been upheld by other courts including the Supreme Court.
To claim nobody in their right mind would employ a person who was first in their class in the worlds top schools is just without merit.
@Alex Leach No. A job interview does not publicly attack your character and honor.
I think all Federal Judges should have to be
approved by 3/4th's of the Senate and then through a Referendum for the District in which they Serve.
All Supreme Court Justices must likewise be approved by
a referendum of all the voters in America.
No one should be allowed to become a Federal Judge
unless they have served as Public Defender, Prosecutor,
Policeman, and a Warder in a Prison.
And all Federal Judges have to start respecting
the 9th and 10th Amendments.
Laws can only be deemed Un-Constitutional if the
vote is 7 - 2 or greater.
1
So true about the Founder's design for a very limited federal judiciary. The founder's also did not even envision rampantly partisan political parties like the Republican party has become over the past 37 years since the Reagan admin. Corporate personhood (or ridiculous "freedom of speech" rights) was of course not considered a possibility, because everyone knew that corporations (not mentioned in the Constitution) were merely temporary chartered legal instruments, creations of the state, not people for Chrissakes!
But railroad Robber Baron attorneys invented corporate personhood in the 1880s out of whole cloth, then these fictional immensely rich and powerful "people" were recently given personal free speech (equals MONEY, another neat legal fictional trick), rights against search and seizure, and now the right to bribe every elected federal official by unlimited, hidden CASH and services. So we have to GUESS how many hundreds of millions of dollars the myriad, hidden Koch brother network groups, agencies, non-profits, think tanks, etc are spending RIGHT NOW on disgusting, lying, negative campaign ads to hurt turnout, confuse voters, and otherwise ruin democracy.
So lying, sexual assaulting Brett will fit right in. He's already shown his mean, nakedly partisan temper, blaming a vast left-wing conspiracy and Hillary Clinton for his sexual behavior. Jump in, the water's fine.
Great job, five Republican members of the Supremely Corporate Court. Since you violated the
19
Prof. McDonald writes, "When it is not clear to justices of both ideological stripes that the Constitution requires a ruling that will have major public policy implications, the court should leave it to the people to decide for themselves."
With this measure, this is the America we will be looking at:
-Reintroduction of segregation, and Jim Crow
-Internment camps for those whom Trump voters believe to be less American than they are, making the cages that Hispanic infants and children are now housed in look like Mr. Rogers neighborhood
-Reversal of Roe v Wade, women dying for back alley abortions
-Rollback of women's rights to equal pay, rights under Title IX, and other rights given to all, regardless of gender
-Institution of Christianity as the state religion, with public representatives assuming their responsibilities only if the acts fit within an extremist, fundamentalist Christianity
-Wholesale discrimination against the LGBTQ community and a rollback of their rights to marry and participate as equal citizens
Now, as a woman of color, an ethnic minority in this country, and an American citizen (native born), I have a lot of skin in this game. And from where I sit, my civil rights should not up for vote by a majority of people who are still viciously racist and sexist (as Trump's election showed). Letting the majority decide what "rights" the rest of us are to receive is a very dangerous idea, and for some of us, our very lives depend on that never happening.
19
Term limits needed. Still wondering about the justice who never spoke for ten years. Nine justices in nation of 326,000,000. Maybe we need 12.
1
@BLB
yes let's ask Trump to expand the Supreme court and nominate another three judges to be justices on the Supreme Court. Good idea. The next judge to go to the Supreme Court if Trump gets to choose will be Amy Barret. That will make the Democrats very happy he is appointing a fantastic woman to the court.
@Mr Chang Shih An
Right wing illiberalism is gender blind. Susan Collins would be a hypocrite and Trumpist regardless of her sex.
You know what else robs the American people of their ability to have a say about the rules that dictate how they live? Voter suppression. Republicans are going to cheat in this election and Democrats will have no recourse.
15
@Daniel
Voter Suppression. I am a citizen of two countries. In Taiwan I need to bring my citizenship ID card and voter registration papers with photo ID before I can vote.
If America had ID's for residents and citizens we could avoid all this thing about suppression of voter ID.
2
@Mr Chang Shih An There are other methods of voter suppression than requiring ID to vote. For example, see what is going on in Georgia regarding voters being purged from the rolls. Also, there is the pernicious practice of gerrymandering.
@statuteofliberty
In all countries they purge rolls as people do move or even just never bother to vote. Gerrymandering is not preventing someone from voting and both DNC & GOP do gerrymandering when in power to benefit themselves.
If you really want to reduce the supreme courts power, pass very specific constitutional amendments to reduce their power on controversial issues like abortion, guns, etc. SCOTUS only matters because laws can be overruled if they are found not to conform to the constitution and its set of amendments. If SCOTUS tries to broaden an amendment, updated it. Once the controversy is addressed via new or updated amendments, John Jay's thoughts about the court will be the way most judges view an appointment to SCOTUS.
The Supreme Court should matter greatly to the country. Supreme Court Justices, however, should not.
When the first Supreme Court was seated, Justices lived into their 40s and 50s, not their 80s and 90s. The longer justices live, the more power they have to impact the Court and shape the nation. For politicians looking to push an agenda, there's nothing more valuable than seating a Supreme Court Justice who will protect the party.
SCOTUS cannot and should not be corrupted by the justices who serve within it.
We need Congress to set term limits of 8 years or less for Supreme Court justices. Brett Kavanaugh might serve 40 years or more, giving someone who displays obvious political bias an unthinkable amount of power. If Congress set term limits, hopefully we'd see less abysmal behavior from the members of the Senate. Further, we would get a much larger and hopefully more diverse group of Americans to serve on the highest court in the land.
Justices sit on the bench. We have to make sure no one turns it into a throne by allowing them to reign rather than serve.
30
@Sarah I tend to agree that they should serve a maximum of 18 years - with 9 of them they would leave every 2 years - so each president would get to nominate 2 in each term.
1
There are drawbacks with term limits:
1) Justices making rulings with an eye towards a lucrative job after they step down
2) Making the nomination process even more political since it will be a factor in every presidential election
I liked the idea of drawing Justices for the Supreme Court from the pool of federal judges. Maybe expanding the seats to 15, keep the current 9 but add six more pulled at random from federal judges. As the 9 retire, replace each with another random pull. Also limit the time they sit on the Supreme Court to two weeks and keep circulating them.
This would remove the Court from politics. There will still be fights over federal appointments, but neither party will hold power long enough to stack the federal level. Also, since no one can predict which Justices will hear any particular case, there will be less gaming the system to appeal to known judicial philosophy. Supreme Court cases will be heard from a much more diverse judiciary, not just Harvard and Yale graduates.
1
The author is certainly correct that this exalted role is not what the founders intended, but what would be the restraints?
I have a philosophy that everyone needs supervision - that included the Supreme Court. What can say no to the Supreme Court? No much today. Originally amendments could do that, as the 13th amendment said no to Dred Scott, and the President or Congress could just ignore the court, as Lincoln did. Amendments are impossible today, and the other two branches are supine, so far. Two possibilities, limit judgements to just the litigating parties or have Congress or a referendum overrule the court on its interpretation of the constitution. Once we peg back the court, nominations can become more routine.
The author is right about much but not the 2nd amendment. Granted it is poorly written, but if it did not convey an individual right to bear arms, then it would have said that "the right of a militia to keep and bear arms, shall not be infringed". It didn't.
1
It didn’t say individual and it was a recent overreach by SCOTUS. It didn’t say OR either so maybe only keep what you can bear, not an ammo dump in your backyard. This article is too general to know what this man suggests. Rights need to be accompanied by responsibilities and taking away any rights must be met by society’s responsibilities. It doesn’t say that I have the right to take penicillin do why would I not have the right to take contraceptives.
Major point of editorial: Supreme Court has evolved into an outsized role compared to other two branches of govt. SC needs to be reformed - term limits for Justices; mandatory retirement at age 75; get rid of Liberal/Conservative Justices. Appoint Justices known for neutrality. Affiliation with political party should be a disqualification.
Kavanaugh worked for years for Republican presidents and conservative causes - a clear disqualification to be Justice on the Supreme Court. The fact that Republican Senators worked so hard to put him on the Court is proof that the Supreme Court is (probably) more political than Congress. Need for a more appropriate symbol of justice for today's court - Remove blindfold from Lady Justice and replace with label: Conservative-Liberal
2
The Washington Supreme Court just ruled that the death penalty is unconstitutional—under the state constitution.
So a handful of unelected individuals who went to law school took it upon themselves to decide that the death penalty is off the table. However one feels about the death penalty, doesn’t it seem this would be a decision for our elected representatives, or a state-wide referendum? Isn’t this a perfect example of why legislators are trying to gain control over the courts—so political decisions which judges seem eager and willing to make are made or blocked by conservative or liberal judges? Did the judges on the Washington Supreme Court consult the legislature before deciding to act? Obviously not.
As a trial lawyer with 38 years experience, it is my opinion that while there is plenty of blame to go around, when politicians see that regardless of what they enact the courts will often disregard it and substitute their judgment for that of elected legislative bodies then it only makes sense for elected legislators and executives gain to control of the courts with by appointing the judges that will the political interests of the politicians who appointed them to the bench.
To paraphrase a famous bank robber, bank robbers rob banks because banks are where the money is.
1
@Duane Coyle
I guess the Eighth Amendment's proscription of "cruel and unusual punishments" means that in the US capital punishment is and always will be not unusual and not cruel. We don't need to think about an evolving standard of justice here, or why other countries have abolished it. What was wrong with the guillotine anyway.?
Not mentioned in this informative piece is the impact of progressive dysfunction in the legislative and the executive branches of the federal government. What neither can accomplish or is unwilling to deal with will and is all the more to be likely left to or forced upon the third branch - the SCOTUS. AS this happens it necessarily becomes all the kore likely that the Supreme Court will succumb to the same staunch partisanship that so terribly afflicts the other two branches.
For all of this perversion of the original intent American democracy is inexorably being progressively diminished. At the heart of this disassembly and atrophy is the progressive degradation of the core notions of citizen diligent engagement and informed participation.
Entitlement without responsibility plays a role here, but with it much of the disinclination toward citizen responsibilities and exercise of the paramount citizen right — the right to vote — derives from the endemic ineptitude and gridlock of governance. This is a condition that becomes all the more intense and egregious the further the process resides from the life and the interests of the individual —therefore the greatest outlier is not surprisingly the federal establishment.
12
Well said. Very well said. Freedom without responsibility is just entertainment.
1
The court matters so much because Congress is afraid of or incapable of passing reasonably articulated laws. By fiat, the SC is left to pick up the pieces. The problem is that the SC is not elected and is not answerable for its actions.
The only problem is that appointments have become politicized. While unanimous or near-unanimous votes used to be common, they have been slowly vanishing as appointments become mere proxy battles between the parties. Thus policy interpretation becomes an extension of congress, rather than a check on same.
This was clearly not what was intended.
4
Unfortunately now the Supreme Court matters. Kavanaugh wanted it so badly that he lied about underage drinking and evaded the questions that came before the accusations from Blasey Ford. That proves that his appointment had nothing to do with his suitability for the job. He's a conservative body meant to steer the country in a direction that is giving an advantage to the richest corporations and families in America. And if abortion was popular with those folks it would be popular with the court and the GOP.
There is nothing so unprincipled as a person whose job depends upon kissing the rings of and endorsing the policies that favor his rich owners. Kavanaugh is now owned by Trump, McConnell, and the entire GOP. He won't be independent or impartial.
30
The Supreme Court doesn't need to run for election. Congress does. If Congress no longer makes laws that deal with controversial issues (you know, the sort of laws that actually matter), they can't be pilloried in attack ads. Thus, law making is delegated to the Excutive and Judicial branch. It's a bad system that at this late hour is fundamentally incapable of being adequately addressed due to structural issues in the Constitution
4
@Angry so what is the point of Congress? If the entire aim is to continue to win re-election, you have got to have term limits.
It sure seemed to matter a whole lot to Kavanaugh. That's the real question. Why did it matter so much to Kavanaugh that he be on the Supreme Court that he would throw aside all pretense of neutrality and judicial restraint? Why did it matter so much to McConnell? Sure seems like they have an agenda that has nothing to do with democracy.
54
@DB On the other hand why did it matter to the Democrats so much that they abused all notions of fair play to prevent Kavanaugh getting on the court?
1
@wnhoke they didn't. They opposed Kavanaugh because he would enact a conservative agenda that is not supported by the majority of America. I would say that was a good thing.
Same reason that McConnell lied and made up pretend rules that he is now reneging on because it suits him, to prevent Merrick Garland from a legitimate hearing.
In addition, he lied under oath and he showed that he does not have the temperament required of a judge, let alone a Supreme Court Justice.
@wnhoke
Perhaps the Democrats thought it was more important to the majority of the population and the nation as a whole than the Republicans who seem to favor the top 1%, religious fundamentalists, racists and xenophobes.
When the Constitution was enacted, there were only 10 amendments -- the so-called Bill of Rights. And most of those amendments laid out the rights of the accused in criminal cases.
For a long time, constitutional litigation was mostly about search and seizure rights, the right to remain silent, grand jury procedures, trial procedures, cruel and unusual punishment, and procedural due process.
Now there are 27 Amendments addressing all kinds of subjects extending well beyond the coverage of the Bill of Rights. Most important, the 14th Amendment established equal protection rights and the right of privacy while extending many of the other amendments to state government as well as federal.
The coverage of the 27 amendments is so much broader than the original Bill of Rights that the Supreme Court's jurisdiction reaches far beyond it original scope. Today's court decides matters that are well beyond the scope of the Bill of Rights.
If we were to restrict the Court's jurisdiction to the 10 original amendments, the breadth of power of the Court would be severely constricted, and the Court would have little discretion and little impact on the rights of the people.
As long as the amendments have expanded the Cout's jurisdiction so broadly, the Court's powers will be all-encompassing.
6
These are interesting thoughts on a difficult complicated, and important question. What does the author think about the court's authority to decide, and the wisdom and propriety of taking on Brown v. Board of Education, and Gideon v. Wainwright? The enlightened men who wrote and adopted the constitution were surely aware of the the potential tyrannies that could be imposed by majorities.
3
The US will fall apart even quicker if the strict constructionists take over. The basic assumption of the framers was that some sort of Democracy should prevail, at least for property owning white males. It is doubtful they intended for many millions have their votes not count in a presidential election and Senators elected by a few thousand should control the lives of millions. The Supreme Court has been trying to fix this so the people are not trampled by the billionaire kings and multinational corps now trying to rule us. Take away the protections of the people and it won't be pretty.
27
Strict constitutionalists are very narrow minded conservatives who can't think for themselves IMHO. They believe our founding white male slave holder landowner "dadies" had it right then and have it right now. We evolve, mimes evolve and so should our constitution. I just can't understand their anasteristic mind set. Things change...get with the times or go into the corner, take a time out then get with the times. Please!
3
@Tibby Elgato
"The Supreme Court has been trying to fix this so the people are not trampled by the billionaire kings and multinational corps now trying to rule us."
Citizens United was a Yuge gift to the billionaire kings and multinational corps. How is that helping the people?
2
@Tibby Elgato Actually, the framers intended for the system to dilute the power of more populous states, at least on the federal level. That is why the Senate is not based on population and why the only part of the Constitution that can't be amended is non-proportional representation in the Senate. It also is why we have the Electoral College. Don't forget that the framers also originally called for state legislatures to elect Senators. That was to provide another check on federal action by the states.
2
Someone must decide the issues so the government can function. A government divided against itself cannot work.
The Framers knew this. They were lawyers.
The process is that the courts decide the issues, just as they do at common law.
Three-quarters of a page is all you need to create the courts.
1
@Robin Foor "The process is that the courts decide the issues, just as they do at common law." So you believe in judicial supremacy (or rather tyranny)?
1
Article one of the Constitution describes the legislative branch which suggest the founders envisioned them first among equals. But over the last few decades the executive branch and it's bureaucracy have taken more and more power. At the same time people across the political spectrum look to the courts for expanded rights instead of looking for wins from the legislature. And both sides miss that having 9 justices or often just a single swing justice decide cases is about an undemocratic as one can image and should disturb them even when their side is winning. Justice Kennedy was basically acting as Plato's philosopher king. And he appeared to do the job honestly with good heart. But there is no place for even good philosopher kings in our system. And the only solution is for Congress to take back it's place as the preeminent branch.
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It seems to me that the Supreme court currently has such power in part because the Congress is failing to do its job. There could be laws, or amendments, specifically covering most of these super-legislative issues. Abortion, gun rights, nuances of civil rights, etc.
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@Doug Elerath Amen
The Declaration contends that all people are created equal and endowed with inalienable rights. If this law professor's view of our Constitution is correct, that promise is a sham. We have abundant evidence that the executive and legislative branches, especially in certain regions of the US, will never regard all humans in this way.
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@Don
The Declaration of Independence is purely aspirational. It is not part of the law of the United States.
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The problem is Congress is not rising to the moment of doing their jobs. Enacted laws to meet the needs of the population are not being met. Currently, taking needs to the courts to get them met by 9 Justices is the only way the population can be heard. This is a makeshift way to meet needs, the Justices, should not have to substitute for Congress doing its job and meeting the needs of the population.
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The SCOTUS is a beacon of hope to all of those progressives who know in their hearts what is right for everybody else but do not have the actual votes nor actual support to pass legislation at any level of government.
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@SteveRR
Especially as long as they are not fairly represented, or in some cases like here in DC, represented at all.
@Barbara DC could be represented easily, if they merged with Maryland - similar to the southern half merging with Virginia. They won't do that because they want 2 senators.
SCOTUS should be a nonpartisan body that does not have the power to set precedent. It should only have the power to decide whether someone broke an agreed upon law or it should send confusing laws back to the congress to be updated and clarified. Each time it sets a precedent, it is in fact legislating and adjudicating. This is not part of the Constitution.
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@CA Dreamer
In any system of common law, the lower courts decide cases. The appellate courts, in rendering their decisions, create precedent by definition. Otherwise you may have a judicial system, but not a common law system.
@CA Dreamer....yes but laws already agreed upon can be biased, discriminatory, unjust, and even abusive. Depending on the time in history and one's viewpoint. Some laws SHOULD be broken, or disobeyed, or reversed.
The congress isn't living up to the promise of democracy. We are awash in conflict because millions are not represented by our laws.
People on both sides of issues bring cases to a polarized court--on voting rights, health care, religion, abortion, union membership. And on money in elections the court equates with 'free speech'.
@Meredith
Agreed! Many laws need to be changed if biased or ambiguous. But, they need to be changed by Congress, not the courts. If the courts reject them, the legislators need to get back to work.
The Supreme Court, in recent decades, has spent a majority of its time parsing the “original intent” of the first ten Constitutional Amendments, also known as the ‘Bill of Rights’.
The language of those ten amendments may be somewhat dated, but very little of it is ambiguous enough to justify the kind sacrosanctity placed upon the Supreme Court. Especially after it’s been so thoroughly violated by Mitch McConnell.
‘Checks and Balances’ can exist without a Federal Supreme Court, it would just require a functional legislative body. Which would likely require term limits on every publicly held office, and transparency that is historically...un-American.
Oh well.
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@ubique I just reread those amendments. Not a word about Miranda warnings, contraceptive or abortion rights, or same-sex marriage could I find.
@Byron Kelly
The first, fourth, and ninth amendments should provide for the liberties afforded by Miranda, Roe, and the overturning of DOMA.
But I’d probably be in the Jeffersonian/Anti-Federalist camp.
Both the Federal government and the U.S. Supreme Court matter too much.
But I doubt Progressives want either to see a reduction in power.
Far easier to demonize half the population and plot how to permanently deprive half the population of political influence (no Electoral College, no Senate, etc.).
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Actually the Supreme Court is part of the Federal Government, which is divided into three equal branches, define in wait for it — Articles I, II, and III.
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@Frank LESS than half the population. The minority currently tells the majority of all us ‘Libtards’ how to live.
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Aren't the conservatives the group which wants to return election of senators to state legislatures?