The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, … the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.— Abraham Lincoln
Lincoln’s fears have come to pass. The Supreme Court has too much power. I know this isn’t news to anybody, but it’s a growing problem and we aren’t doing enough about it.
I like some Supreme Court rulings. I dislike others. Lately, their generally conservative trend has warmed the cockles of my reptilian Republican heart (wink, wink), but I’m not so shortsighted that I think it’ll last forever. I hate Roe v. Wade in large part because it’s an overreach of judicial authority, and some of you libs out there hate different cases for similar reasons. There’s a bedrock principle involved here that’s worth upholding by both the left and the right: citizens ought to have the final say over policy decisions that affect them. But our power over our lives is steadily being eclipsed by our courts.
“Fine,” you say, “but what do we do about it?” The solution is simple in concept, but hard to execute: pit Congress and the President against the Supreme Court.
The only things that’ll keep the Supremes from running amuck in either direction are the other two branches of the federal government. The Founding Fathers left us a three-headed federal monster that was supposed to be too busy fighting itself to mess with the citizenry much. But although Congress and the President have the authority to act in ways that can restrain the Supreme Court, since the days of the Warren Court they’ve been derelict in their duties. The three-headed monster is now focused on us. One head makes stuffy legal pronouncements about anything and everything, and the other two heads say “yes, sir” and promptly chew on what remains of our lives, liberties, and property.
Have you ever noticed that Supreme Court rulings are treated with excessive awe and reverence by our society? Even your local U.S. Court of Appeals gets a bucketful of deference (unless you live in the Ninth Circuit, thankfully). Yes, small groups of us complain about this ruling or that, but nobody really challenges the judiciary in a serious way. Judges appropriate greater and greater authority for themselves every year, and the average person on the street assumes that if the Supremes say “such-and-such is constitutional”, then that settles the debate.
Most Americans went to public schools where the quality of civics education stinks. Joe Citizen is a good guy, but he doesn’t have a lot of free time to pay close attention to the courts, and assumes that most judges are impartial interpreters of the law. After all, back in school their government-funded “Social Studies” classes said so!
The typical American accepts without thought the media’s reports on Supreme Court rulings as settled law on a par with the Ten Commandments. Congress and the President realize this, and they understand that they can get away with advancing their policies via lawsuits and court orders. That way, the blame for any unpleasant results can shrugged off and dumped onto unelected judges with life tenure. “Don’t look at me,” says the politician seeking re-election, “I didn’t make the decision. The courts did.”
Political factions aren’t stupid; if we’re to be ruled by the judiciary, then that’s where the attention will be focused every November. That’s why the judicial nomination process has gotten so politicized lately, with competing factions vying to nominate ideologically like-minded judges who will hopefully toe the party line on this issue or that. Instead of interpreting the law, our favorite black-robed dipsticks make the law … from the bench.
But why should it be that way? I don’t care whether the judicial power grab comes from the left or the right; it’s still a steaming pile of horse crap.
The Congress and the President have an obligation equal to the Supreme Court’s to interpret the Constitution in the course of their duties, and it’s high time they got serious about it. Until we voters light a fire under their pinstriped butts they will continue to take the path of least resistance. They’ll keep neglecting the critical work of preserving, protecting, and defending the Constitution. Power abhors a vacuum, and the unelected Supreme Court will continue to fill it until the other two branches stop farting around. Do you feel like entrusting social change to nine black-robed Philosopher Monarchs? I sure don’t.
It wasn’t always this way. Andrew Jackson once defied a Supreme Court ruling declaring his Indian Removal policies unconstitutional, saying “John Marshall has made his decision; now let him enforce it.” FDR’s New Deal gives me hives when I ponder it, but I’ve got to give the guy his due for the politically brilliant court-packing stunt he used to rein in the Court’s opposition to his exercise of Presidential authority. And in the 1869 case Ex Parte McCardle, the Court backed off when Congress flexed its Article III Section 2 muscle to remove the Court’s appellate jurisdiction over a certain category of cases.
The political issues motivating these uses of constitutional power varied, and the moral justifications are open to debate, but the underlying political principles were the same. That system’s still there, if we can muster the will to use it. The U.S. Supreme Court can be reined in, and it’s long past time to start. I’ll be thinking about strategies this summer, and hopefully some will be worth blogging about.