SCOTUS Was NEVER Meant to Be Kings & Queens

This lawlessness has gone way too far: the Senate needs to intervene and reassert its authority over the Supreme Court. And they need to do it now…

With the leaked Idaho emergency abortion ruling yesterday, it appears the Republicans on the Supreme Court are trying to do the same thing they did with the Mifepristone ruling: move the cases to a non-election-year to avoid hurting GOP candidates.

Since it only takes four justices to grant cert and commit the Court to hearing a decision, it’s obvious that the most fanatic Catholic anti-abortion freaks on the Court, who wanted to ban Mifepristone and shut down emergency abortions in Idaho, opened the Court’s door for these cases to be heard this year.

However, once the cases were argued, their more rational Republican colleagues convinced them that such decisions this year would doom Trump’s chances in the election, so they punted and shot the cases down based on standing (saying the plaintiffs didn’t have a right to sue). In other words, they decided not to decide.

So, they’ll just pick up the cases next year with different plaintiffs and then they’ll outlaw abortion and abortion drugs nationwide.

After releasing that decision, they legalized bribery yesterday, so long as you make the payments after the politician gets you the big contract. You know, the way Clarence Thomas got millions after he voted to allow billionaires to bribe politicians and Supreme Court justices in Citizens United.

Which raises the question: How did the Court get so much power that they can overrule both Congress and the President, ignore efforts to hold them accountable when they are nakedly corrupt, and overturn laws like our bribery statutes? Who put them in charge of America?

The simple answer, as I lay out in detail in The Hidden History of the Supreme Court and the Betrayal of America, is that they gave that power to themselves.

Not only is such power for the Court not found anywhere in the Constitution, but Article III, Section 2 explicitly puts the Supreme Court under the thumb of Congress, not the other way around:

“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, 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.” [emphasis added]

The Founders and Framers were very clear about this, even though that notorious liar Sam Alito wasn’t when he recently wrote  in The Wall Street Journal:

“No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.”

In 1788, when James Madison and Alexander Hamilton published a long series of newspaper articles promoting to the American people the idea that they should ratify the Constitution (today we call them The Federalist Papers), Hamilton took on the job of selling Article III, which authorized Congress to create the court system. 

It included, in Section III, the mandate that Congress set up the Supreme Court by defining how many justices it would have, where it with meet, what its budget would be, and what it could and could not rule on.

In that sales pitch, Hamilton, on May 28, 1788, wrote in Federalist 78, that the courts, including the Supreme Court, were the weakest of the three branches created by the Constitution. After all, at that time it wasn’t envisioned that they would ever have the power to strike down laws passed by Congress.

“[T]he judiciary is beyond comparison the weakest of the three departments of power,” he wrote, adding in the same sentence that “it can never attack with success either of the other two [branches].”

He even footnoted that sentence with a quote from the famous French judge Montesquieu, who had first famously articulated the idea of a separation of powers between governmental branches as a check and balance. Hamilton’s footnote read:

“The celebrated Montesquieu, speaking of them, says: ‘Of the three powers above mentioned, the judiciary is next to nothing.’”

He explained why the Court’s judges had lifetime appointments and the judiciary had its own section of the Constitution, writing in the Federalist 78:

“[F]rom the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches.”

The lifetime appointments and Montesquieu’s “separation of powers” would insulate the Court from being “overpowered, awed, or influenced” by the president or Congress.

If that wasn’t clear enough, a month later, in June 1788, Hamilton published Federalist 81, again arguing that voters didn’t need to worry that the unelected Supreme Court could make or strike down laws or impose its notions of morality on the rest of us.

First, he cited (rather accurately) the objections to the Supreme Court he was pushing, noting that opponents of the Constitution were concerned that Supreme Court justices — dangerously! — might interpret the Constitution in a way reflecting their own personal or partisan perspectives.

“The arguments,” Hamilton wrote, “or rather suggestions, upon which this charge is founded, are to this effect:

“The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mold them into whatever shape it may think proper; especially as its decisions will not be in any manner subject to the revision or correction of the legislative body.

“This is as unprecedented as it is dangerous.” (Emphasis Hamilton’s.)

Having set up the objections/concerns, he then answered those doubters in the next paragraph:

“In the first place, there is not a syllable in the plan [Constitution] under consideration which DIRECTLY empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State.” (Emphasis Hamilton’s.)

He also pointed out, in the next paragraph, that even if the Court were to rule on the meaning of a poorly written law (or even corruptly distort a law’s meaning) in deciding a case, the legislature could simply overrule them:

“A legislature, without exceeding its province . . . may prescribe a new rule for future cases.”

Still, people were concerned that the Court would have too much power. What if they started striking down laws passed by Congress and signed by the president, both elected by We the People, while the justices were merely appointed and not answerable to the people?

Hamilton’s final answer in Federalist 81 was that the Constitution itself prevented such an abuse of power because the Supreme Court was explicitly subordinate to Congress.

“We have seen that the original jurisdiction of the Supreme Court would be confined to two classes of causes, and those of a nature rarely to occur [arguments between the states or president and Congress, and treaties with other nations]. 

“In all other cases of federal cognizance, the original jurisdiction would appertain to the inferior tribunals; and the Supreme Court would have nothing more than an appellate jurisdiction, ‘with such EXCEPTIONS and under such REGULATIONS as the Congress shall make.’” (Emphasis his.)

If that wasn’t clear enough, in the next sentence Hamilton essentially repeated himself:

“To avoid all inconveniencies, it will be safest to declare generally, that the Supreme Court shall possess appellate jurisdiction both as to law and FACT, and that this jurisdiction shall be subject to such EXCEPTIONS and regulations as the national legislature may prescribe. This will enable the [rest of the] government to modify it in such a manner as will best answer the ends of public justice and security. (Emphasis his.)

But the next year the Constitution was ratified, the country came into being, and the Supreme Court itself got to work. Its fourth and one of its longest serving Chief Justices (1801-1835) was John Marshall, a High Federalist, what today we’d call a radical conservative. (He was also Jefferson’s second cousin and bitter political enemy.)

Thus, in 1803 in the case of Marbury v Madison, Marshall and his three colleagues on the US Supreme Court took onto themselves a power not given them by the Constitution: the ability to strike down or modify laws passed by Congress and signed by the President. 

It’s called “judicial review.”

Thomas Jefferson was president that year and he flipped out. He bluntly expressed his concern to his old friend Judge Spencer Roane, the son-in-law of Patrick Henry and a justice of the Virginia Supreme Court:

“If this opinion be sound,” Jefferson wrote, “then indeed is our Constitution a complete felo de se [a suicide pact]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone, the right to prescribe rules for the government of the others, and to that one too, which is unelected by, and independent of the nation…. 

President Jefferson, author of the Declaration of Independence and first drafter of the Bill of Rights, continued in full fury:

“The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please. …

“My construction of the Constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal….

“A judiciary independent of a king or executive alone is a good thing; but independent of the will of the nation is a solecism [a blunder], at least in a republican government.”

Now you understand why Trump’s lawyers repeatedly mentioned Marbury when arguing he should have immunity: they were essentially asking the Court to create or “discover” brand new laws or interpretations that would get their client off the hook.

It’s also why, most recently, the conservative majority again quoted Marbury in their Moore v Harper decision this month:

“Marbury v Madison famously proclaimed this Court’s authority to invalidate laws that violate the Federal Constitution.”

Methinks they doth protest too much.

The simple reality is that the Court has been regularly exceeding its constitutional authority for decades, Marbury or not. (Marbury set limits on judicial review, explicitly separating “ministerial acts” from “discretionary acts,” a distinction it modified for itself in 1902 but that still largely stands.)

The Supreme Court was originally created as the court of last appeals; the buck, after all, had to stop somewhere. Article III also makes clear it’s the court to which the President and Congress should go first if there’s a dispute between those two branches.

But even John Marshall didn’t envision the Court as an institution that could oversee and micromanage any action by Congress or the states that caught their fancy.

Today, though, we have billionaire-funded rightwing groups collaborating with the same people who put the last four conservative justices on the Court to come up with explicit test cases to re-engineer American law in accordance with their own religious and moral worldviews.

They are behaving like legislators, not like judges. It’s often derisively referred to as “legislating from the bench.”

The Court has, in other words, gone far beyond its charter — and that doesn’t even begin to address the Court’s naked bribery problem, which it made worse this week by ruling that bribes given after the fact are mere “gratuities.” Clarence Thomas, Neil Gorsuch, and Sam Alito are having a great laugh at our expense.

And why Senate Judiciary Chairman Dick Durbin refuses to take them on is an ongoing mystery, much to the frustration of Sheldon Whitehouse and other senators on the committee.

This lawlessness has gone way too far: the Senate needs to intervene and reassert its authority over the Supreme Court. And they need to do it now.