The Supreme Supremes

How was Justice Scalia the most powerful man in America?

Apparently, it's now been long enough since the untimely (if not slightly suspicious) demise of arch-conservative Justice Antonin Scalia for jokes to be cracked about it.

That must mean it's also appropriate to talk about the political consequences, as earthshaking as they are.  By now, every American knows that the future of the country hangs in the balance scales of justice.

Either the Republicans will successfully stall the nomination until the next election, and a conservative will be elected President, and he'll appoint a conservative justice, and that justice will stay conservative - or, the Left has won once and for all and the nation is lost to its past history of greatness.

But - why on earth is a judge so all-fired important?  Our Founders didn't think they ought to be: indeed, in the Federalist Papers, Alexander Hamilton wrote that the judicial branch was the weakest and least of the three branches of government designed into our Constitution.

It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter.

If he'd happened to think of it, he probably would have considered the "Fourth Estate", the free press, to be more powerful than the judicial branch.

Yet, somehow, we live in a land where the most profound and far-reaching decisions are rarely made by elected legislatures, or even by elected unitary executives, but by unelected judges with lifetime appointments who will never, ever, face any consequences for their decisions.

Ever-Growing Power

Most of us probably think of the Supreme Court as having always been momentous and intensely political, but it hasn't always been so.  As recently as mid-century, the two parties were often able to agree on a reasonable centrist justice (or, at least, one who appeared to be reasonable and centrist.)  The consequences of a wrong choice didn't seem so dire as they do now, and people would have laughed at the idea that a justice matters more than the President.

Over the decades, something has changed, and that something is the breadth and reach of government power.  In theory, judges are supposed to interpret the law, and on subjects where there is no law, they should have nothing to say.  For most of our history, America's government judged by the principle often credited to Thomas Jefferson:

That government is best which governs least.

There were laws, civil and criminal; there were government actions of regulation and contract enforcement; but most of the time, most people had little to do with any arm of government beyond the Post Office.  To name but one example, it would have been considered preposterous in principle for government to meddle with the definition of marriage - and that actually is a subject addressed in common law.  Parsons and local justices dealt with marriage issues, and that was that.

So, a Supreme Court justice in 1900 would have power over contract law and interstate commerce - basically, very large companies - and occasionally, something to do with a really extreme criminal case.

The court would never hear a case concerning someone's right to develop their own property as they saw fit - of course they had that right, that's what private property is!

Nor would they entertain arguments that duly-passed local laws were invalid, for, after all, the Tenth Amendment reserves all other powers "to the several States, or to the people."

Environmental regulations?  Nonexistent.  Culture-wars questions?  A matter for individual states, if that.

The point is, the reach of the Supreme Court of that day was far narrower; therefore, the stakes of a botched appointment were much lower.  A bad justice simply couldn't do very much damage.

And this was the point of view our Founders had about the Court, which is why they spent the least time discussing it of any of the three branches.  It's small, it's naturally limited, the federal government doesn't have that many powers anyway, so it's not nearly such a risk.

What a difference a few centuries make!  Our Founders clearly saw the hazards of unitary political power and went to extreme measures to set the President and Congress in check of each other.  A President has every right to nominate appointees, as Mr. Obama has promised to do for the vacant Supreme Court seat; and, the Senate has every right to ignore his appointment and leave the seat empty, as Majority Leader Mitch McConnell has promised to do.  Both men are acting perfectly within their Constitutional powers, and the result is a stalemate, just as the Founders would have wished.

What's more, over the years there have been additional laws passed to curb executive power.  As we've bemoaned on several occasions, the President doesn't even have the privilege of hiring and firing for his own Executive Branch save at the very topmost level.  Mr. Obama can't sic IRS or FBI agents on his political enemies - well, not directly anyway.

Yet judges have almost unlimited power to push people around.  The President can't take your stuff without compensating you for it; a judge can in several different ways.  The President can't summarily throw you in jail; a judge can, for contempt of court which is defined by the judge, and he can keep you there forever without trial until you do what he demands.

What's more, if the President is your enemy, you probably have some powerful friends on the other side of the aisle who can help.  If a judge is out to get you, though, other people tend to side with the judge no matter what.

This wasn't so bad when judges had power over quite limited areas of life.  In fact, it was good: the unaccountable nature of judges let them administer justice to the powerful and well-connected without personal fear.

But now, when judges have nearly the power of hereditary monarchs?  Putting one in place who agrees with you is the most important, effective, and long-lived thing possible in politics.

Our Founders' Foresight

The framers of the Constitution would be shocked at what we've allowed the Supreme Court to become; from their writings, it doesn't appear that they really foresaw the particular problem we find ourselves enduring.

Nevertheless, their natural paranoia made them include several useful mechanisms for checking the overgrown power of the court.  The most widely known is of course impeachment, but as that's happened a handful of times in the entire history of the Republic and doesn't seem likely to change soon, it's an empty threat.

There's a much more powerful weapon that's easier to use to boot: the Constitution gave Congress an implied power to determine the jurisdiction of the court.  Article III tells us:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.

Yes, that's right: if Congress doesn't like a Supreme Court decision, all it has to do is pass a law saying "The question of X is hereby declared to be not a legal question under the laws of the United States and the Constitution, and is therefore outside of the jurisdiction of Federal courts."  Bang!  Done.

Now, obviously you have to have a president willing to sign such a law, so that wouldn't have helped with the recent disgraceful ruling on homosexual unions.  It does happen fairly regularly, though, that you have a President and a Congress of the same party; we may very well find ourselves in just such a situation one year hence.

So the way forward is crystal clear.  First and foremost, our congressional Republicans need to stick to their promises not to confirm any more judicial appointments from Mr. Obama.

And then, once we have a new President who is hopefully a Republican one, even before considering any judicial appointments from the White House, Congress needs to present a bill to remove a whole host of things from the purview of the Federal court system.

Treatment of terrorists?  Not a question for our courts: they are not citizens and don't have civil rights, so they are not encompassed by either the laws or the Constitution of the United States.  Depending on their nationality, they may fall under a treaty agreement; in most cases, this can quickly be fixed in one of a number of ways.

Legal protections for illegal immigrants?  Likewise: they are not citizens, they don't belong here, they have no civil rights, and by their own actions they are not under our laws or Constitution, hence there is no jurisdiction of the courts over illegals.

The definition of marriage in each state?  Not the business of the federal courts, and it would be just as well if Congress eliminated all federal marriage laws and regulations entirely so as to remove the question from their reach.  Let each state choose its own way, as different as they might be; that way, most Americans will live under rules they agree with or at least can tolerate, and if not, it's easy to move one state over.  Same goes for abortion.  No, it's not in the Constitution and never has been, so the proper course is the same.

For fifty years or more, the courts have tried to resolve questions where the political process has failed to find a permanent agreement.  This seems like it stops the battle, but it's an illusion: it just compresses and intensifies the fight by making the stakes greater.  This is entirely the wrong way to resolve fundamental disagreements, and these days, it seems like just about every issue is a fundamental disagreement.

If something isn't done to change the pattern, sooner or later we'll come to blows.  How much better to return courts to the confines they once enjoyed, and return power to the people where it belongs!

And when the Supreme Court is no longer absolutely and unaccountably supreme over all they survey, then we can get back to quiet, orderly, agreeable confirmations of brilliant but bookish legal scholars instead of politicians in robes.

Petrarch is a contributing editor for Scragged.  Read other articles by Petrarch or other articles on Law.
Reader Comments

.... If he'd happened to think of it, he probably would have considered the "Fourth Estate", the Free Press, to be more powerful than the Judicial Branch ....

Didn't Thomas Jefferson say he'd rather have a Free Press without a government, than a government without a Free Press?

February 29, 2016 1:02 AM

Petrarch has nailed it. The next congress should send all the garbage back to the states and let them deal with. If only they have the guts. Cruz and Trump are the only two with that possible mentality.

February 29, 2016 1:30 AM
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