Article Three of the Constitution established the Supreme Court and such inferior courts as the Congress may, from time to time, ordain...
Section One of Article Three states that judges, both Supreme and inferior shall hold their office during good behavior, and be compensated for their service, Section One implies that judges have tenure for life as long as they exhibit good behavior, but it does not explicitly say so.
Section Two of Article Three states that Judicial Power shall extend to all cases, in Law and Equity, arising under the Constitution, Laws and Treaties, it specifies where trials are to be held, and reinforces the right of trial by jury. It is the section that was tested under Marbury v Madison, that established Judicial Review. More on this later.
Section Three of Article Three defines treason: levying war against the United States and/or giving aid and comfort to those that do.
With the nomination of Amy Coney Barrett to replace the deceased Ruth Bader Ginsburg, both conservatives and liberals are saying that the Supreme Court will most probably lean conservative when deciding the major issues that come before it. The first of which is the fate of the Affordable Care Act. Unless the results of the November presidential election supersedes it. Future decisions to come before the court will be other contentious issues; abortion, climate change, and gun regulations, to name a few.
But the most important goal of the Republicans and a conservative court will be to further diminish the power of the executive branch of government, denying future administrations the ability to regulate such as financial markets and the environment.
No other country in the civilized world; not Canada, Great Britain, Germany, France, not even Russia or North Korea, have a court that embodies as much power as our Supreme Court. As you saw, Article Three of the Constitution does not give the courts that kind of power, they took it themselves in Marbury v Madison in 1803, when Chief Justice John Marshall ruled that is was the province and the duty of the Judiciary to say what the law is. That is to say that the Court took upon itself the power to legislate from the bench. In no other country does the court have this kind of power - the courts can only advise the legislature to fix errors in a law. And in some other countries, the legislative body can overrule the court if it feels there was judicial overreach. And in no other country do judges serve for life.
Alexander Hamilton wrote on Judicial Supremacy after the Marbury ruling: "...nor does this conclusion by any mean suppose superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both, and where the will of the legislature, declared in its statutes stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former." Hamilton further said he "...expressed the view that the courts hold only the power of words and not compulsion upon those two branches of government upon which the Supreme Court is itself dependent."
Thomas Jefferson, who was president at the time Marbury was decided, also wrote on judicial review: "You seem...to consider judges as the ultimate arbiters of constitutional questions; a very dangerous doctrine indeed...Our judges are as honest as other men and no more so. They have with others, the same passions for party, for power, and for the privilege of their corp."
However, with the Congress mired in contentious debate and unable to govern effectively; the Congress has been more than happy to cede decisions to the courts. And while the Republicans have, for years, complained about the court legislating from the bench, now that they have the opportunity to 'pack the court' with conservatives, we hear nary a peep from them.
It is not to say that the court has not ruled effectively; for example the courts unanimously struck down school segregation in Brown v Board of Education in 1954. But the dubious decision of Bush v Gore - where the court did in fact pick the winner of a presidential election overruling the will of the electorate - was judicial overreach that cost the country thousands of lives and trillions of dollars in an un-necessary war, that we are still trying to extricate ourselves from. Or in 2008 when the court, in convoluted logic, gave individuals the right to carry a gun as per the Second Amendment. And the 2010 ruling that equated corporations to persons and opened the floodgates to unlimited monies for political campaigns. Or when the the court said in 2013 that, as there was no longer a problem with racial injustice, the Voting Rights Act was to be considered too stringent. It was then when Justice Ginsburg, writing in dissention to the decision wrote it was like "...throwing away the umbrella in a rain storm because you weren't getting wet."
With the Supreme Court assuming more and more power, it is now considered an important element in the presidential campaigns, with each candidate promising to nominate a person to the court, who they feel will vote along the wishes of his constituency and not on the merit of legal principle. Thus invalidating the neutrality of the court and making it another political branch of government, If Ms. Barrett's appointment is approved by the Senate it will set off a political backlash. The Democrats are vowing, if they gain control of the Senate and the presidency, that they will expand the court from nine justices to thirteen, giving them a 7 to 6 majority.
We read that the Constitution says nothing about the size of the court, and all it takes is a bill from Congress that the president must sign and the court size will be increased. The last time the court headcount was changed was in 1869, in 1937 FDR proposed increasing the court size, but it went nowhere with the Congress in the opposition party. So the Democrats increase the court when they are in power, and then the Republicans increase it to fifteen when they return to power. To what end?
It is only when we Americans come to understand that we will not be ruled by nine or thirteen or fifteen unelected, unaccountable justices sitting, aloof, in some musty courtroom who say they are the sole interpreters of the Constitution, will we break free of their tyranny. Abraham Lincoln said at his inauguration in 1860; "If the policy of the government upon the vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court, the people have ceased to be their own rulers.'
Perhaps we should demand that the president appoint justices who will overturn Marbury v Madison, stare decisis be hanged. It is only then will we return to a constitutional form of government envisioned by the founders.
I'm just sayin'
