The 'false mythology' that gave the Supreme Court unconstitutional power

U.S. Supreme Court Justice John Roberts with Justices Clarence Thomas, Brett Kavanaugh and Sonia Sotomayor. Chip Somodevilla/Pool via REUTERS

Political scholars often describe the U.S. Supreme Court as one of the three "co-equal branches of government" in the United States' system of checks and balances. But according to Mother Jones, the High Court is being elevated by a "false mythology" that isn't in the U.S. Constitution — and as a result, often overreaches.

Journalist Pema Levy, in Mother Jones, explains, "Today's Court bolsters its authority to decide what the Constitution means for the entire country by cultivating an aura of expertise and impartiality, like oracles who hand down Constitutional truths from on high. This mythology is powered in part by a lack of transparency or accountability — mechanisms of control reserved for political actors, which they claim vociferously they are not."

Levy, in her article, is highly critical of the Roberts Court. But she stresses that the High Court was overreaching long before George W. Bush appointee John Roberts was sworn in as chief justice in 2005.

"There is perhaps no Supreme Court case worse than Dred Scott v. Sandford, the 1857 decision that propelled the country toward civil war," Levy argues. "Infamously, the Court ruled both that Black people could not be citizens and that Congress could not ban slavery in U.S. territories. The decision was expressly overturned by the 14th Amendment to the Constitution, establishing citizenship to all people born on American soil. But Dred Scott also deserves a place in history as the birth of judicial supremacy —of the Supreme Court overruling an act of Congress."

Levy continues, "The Court overrules Congress so frequently today, that it's hard to imagine that such an assertion of authority could be a scandal. But of all the shocking and intemperate parts of Dred Scott, the fact that the Court invalidated an act of Congress — the Missouri Compromise that banned slavery in certain territories — was among the most audacious."

According to Levy, the Supreme Court's overreach is explained in the book, "Supremacy: How Rule by the Court Replaced Government by the People," written by Harvard University law professors Nikolas Bowie and Daphna Renan. The book, Levy writes, shows that SCOTUS "has taken more power than the Framers entrusted to them."

"Tracing the growth of the Court's authority through the nation's history," Levy explains, "they describe our current system, in which the High Court can veto Congress' will, asjudicial supremacy. Rather than a constitutional construct, they show, it is a social one. Over a period of some 100 years, the American people, encouraged by leaders on both sides of the political aisle, came to believe that the Supreme Court had the final say over what the country would become. Rather than the people, through their representatives, running the country — nine unelected judges took control."

Levy continues, "Now, the authors argue, it's time to take it back … Rather than throw up their hands at the Court's stranglehold on the country's ability to provide health care, protect voting rights, and keep up the guardrails of democracy, they argue that the solution is remarkably simple. 'We can rebuild a democratic government of the people in place of supreme rule by the Court' if Americans build a movement to demand it."

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