Hartmann: The Radical Right Wing Supreme Court Is Acting Like It's a Monarchy

Human Rights

It's time to review Judicial Review.

Nowhere in the Constitution is the Supreme Court given the power to strike down laws or to create law. That is a power exclusively held in the first and second branches of government: the Presidency and Congress.

Even most modern constitutional monarchies do not allow their monarchs to interfere in the lawmaking process. But the Roberts Court has decided that it’s a monarch and that the United States is a constitutional monarchy.

Today, the court released critical rulings about public employees and about Obamacare.

In the former, the court invented a new category of public employee to decide the case, a classic case of legislating from the bench. In the latter, they created a new form of medical category, again creating law from the bench. 

This is not a power the Constitutional gives to the Court. What the Court should have done was simply decide each case for the specific person(s) the cases centered on and left it at that.

Instead, the Court created a whole new category of public employee and applied it to the entire country without so much as a howdy-doo from Congress or the president, who are tasked by the Constitution with the job of doing such things.

Similarly, in the Obamacare case, rather than serving as the final authority on an individual case, as the Constitution envisions, the Court decided to modify a law passed by Congress by differentiating between types of corporations and different types of healthcare.

This judicial monarchy, known in legal circles as Judicial Review, must be restrained.

And, under the Constitution’s Article 3, Section 2, Congress has the power—and I would argue, the obligation—to do it.

The Constitution says explicitly that, "The Supreme Court shall have appellate jurisdiction, both as to law and fact, with such Exceptions and under such Regulations as the Congress shall make."

Congress should pass a law invalidating Judicial Review.

It wasn't always this way.

From the founding of our republic in 1789 until 1803, the Supreme Court was just the final court of appeals.  After all, the buck had to stop somewhere.

The Court was sometimes referred to as the "dogs and chickens court," because America was so agrarian and there were so many battles between farmers that were decided different ways by different judges, that ultimately the Supreme Court had to make the final decision about whose dog was responsible for killing whose chicken.

In 1803, in the case of Marbury v. Madison, the Supreme Court took upon itself the power to strike down a law passed by Congress and signed by the president.

Then-President Thomas Jefferson was horrified, and immediately wrote a letter to John Adams’ wife Abigail, a confidant, saying, "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."

Continuing his rage against the Supreme Court’s decision to give itself king-like powers, Jefferson wrote to Virginia Supreme Court Justice and Patrick Henry's father-in-law, Spencer Roane, "If the judiciary is the last resort in relation to the other departments of the government…then indeed is our Constitution a complete felo de se (suicide pact)… The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary…"

Jefferson believed, as did many of the founders, that the Supreme Court should be the final court of appeals on individual cases about individual people or organizations. He did not believe that the court should have the right to strike down or write laws.

Modern-day supporters of the doctrine of Judicial Review say, “If we don't have the Supreme Court deciding what laws are constitutional and what not, then who should?"

To that, Jefferson had a simple answer: "The people themselves." 

In 1823, still bitter about the Supreme Court's decision 20 years earlier, he wrote, "This case of Marbury and Madison is continually cited by bench and bar, as if it were settled law… The Chief Justice says,'there must be an ultimate arbiter somewhere.' True, there must; but…the ultimate arbiter is the people."

In other words, if Congress or the president passed unconstitutional laws, it’s the duty of their political opponents to point that out, and it’s the duty of the people to vote them out of office.

That is how a democratic republic works, as opposed to the constitutional monarchy we now have.

Interestingly, Jefferson's rage restrained the court.

From 1803 until long after his death, the court did not again exercise judicial review by striking down a law or creating a doctrine that applied to the entire country.

The second time they tried it was when Roger Taney was Chief Justice in 1856. Taney thought he could use the powers Chief Justice John had given the court in 1803 to end the "problem" of slavery. That second judicial review decision was Dred Scott .v Sanford. But Abraham Lincoln was having no part of it.

He refused to recognize the Judicial Review component of Dred Scott and said, in effect, "That decision was a terrible one for poor Mr. Scott, but it doesn't apply to anybody else. I am going to emancipate all the rest of the slaves."

Judicial review went on steroids in the 20th century, particularly during the presidency of FDR, although he slowed down the use of it in 1937 by threatening to use Article 3 Section 2 to regulate the Court by adding more members to it. And it became particularly toxic in the 1970s after Lewis Powell, of the infamous Powell Memo, was put on the bench by Richard Nixon.

He pushed through the idea that money is protected by the First Amendment as if it was speech, handing our political and electoral system over to billionaires and corporations in the Buckley v. Valejo decision.

The grandson of that decision, Citizens United v. FEC, has done perhaps irreparable harm to our republic. And none of these concepts have ever been legislated or even debated on the floor of the House or Senate.

Now the Supreme Court is using this illegitimate power in virtually every decision. The court could easily have decided in Hobby Lobby on behalf of or against that one particular corporation without generalizing their decision to all corporations.

The court could easily, in the union case, have decided that that one particular woman, because of her unique circumstances, didn't need to join the union, without generalizing and creating an entirely new class of public employees. And they could have decided Hobby Lobby without giving corporations the right to hold and exercise a certain religious belief. 

This Supreme Court is out of control.

It’s turned our democratic republic into a constitutional monarchy, and the monarchs, or at least five of them, are running amok.

Congress must act.

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