Abraham Lincoln’s words have always stuck with me:
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.
Some years ago—the early 1990s—my job entailed periodically listening to Congressman Charles Taylor give after hour tours of the Old Supreme Court Chamber to small groups of his constituents. The congressman enjoyed talking history and, being a lawyer himself, seemed especially engaged during his old court tours. The most interesting part, I thought, was when the congressman discussed the supreme court’s Marbury v. Madison (1803) opinion, which established the supreme court’s judicial review authority.
Congressman Taylor would point to the chief justice’s chair and say something to the effect of: “It was here in this room, over there in that chair, that Chief Justice John Marshall said, ‘It is emphatically the province and duty of the judicial department to say what the law is,’ thus establishing the court’s judicial review authority.” It wasn’t my place to get involved, but this was the part in his tour where I wanted to raise my hand. So you understand, the U.S. Constitution didn’t explicitly say the supreme court had the right or power of judicial review. No, Chief Justice Marshall, unchallenged by the Congress, basically seized that authority. Bloviate as some lawyers may, and do, the Founders did not grant this authority to the high court. And for good reason…I would argue.
The high court’s majority renders its “opinion.” Oftentimes the court’s minority (or dissenting) opinion is just as valid and equally well argued. They just got outvoted, that’s all. And true to form (human nature), many times the opinions of each justice aligns—oh so conveniently—with their perceived political ideology. This is especially true—though admittedly, not always—in big cases, involving hot political topics. On top of that, members of both political parties will openly praise or condemn justices appointed by their party if that justice has or hasn’t pulled the party line during a big court decision. No hiding the expectations in other words.
Much to the contrary about justices being “objective” and “just enforcing the constitution,” the members of the Senate like to appoint justices, naturally, that further their party’s political ideology. For me, the simple truth is the supreme court is mostly just another political body—but, unlike the other two branches, an unaccountable one. For smaller cases, where there’s little political significance, the justices will tend to be more judicious. But in larger cases, where big political stakes involved, the justices decide mostly inline with their politics. Like everyone else the justices are human and so their motives are never truly pure. As William James wrote: “Human motives sharpen our questions, human satisfactions lurk in all our answers, all our formulas have a human twist. . . . The trail of the human serpent is thus over everything.”
Since judicial review is based on precedence, and not a provision specifically enumerate in the U.S. Constitution, the Congress could, if they were so inclined, enact a law stripping the high court of this final authority. The court could do nothing about it. The supreme court should function as the last stop in the federal appellant court system. But in certain cases, to use Lincoln’s words, where “vital questions” are at stake, the U.S. Congress should have the final say. The American people, through their elected representatives, should, in my view, have the final say in such legal cases the U.S Congress deems of vital importance. If it were my decision you’d have a law that requires a super majority of, say, 60% in the affirmative in both Houses of Congress to override the high court’s opinion. I think there’s a fair argument for a simple majority, but to provide for some buffering (to retrain abusers) I would recommend a super majority.
Now, if you disagree with me I welcome your opinion. But just consider some of the horrid opinions rendered by the supreme court. We’ve been forced to live with those “opinions” from unelected and unaccountable judges. All of whom, by the way, have lifetime appointments. Consider that since 1790 we’ve had only 1 of 113 supreme court judges appointed face impeachment…of which he was acquitted. So no U.S. Supreme Court justice has ever been removed from office. Think about that. That’s a lot of power and security handed to 9 very fallible and opinionated people that will (and have) ultimately impress their values and opinions, whether we like it or not, on the rest of us—a nation of hundreds of millions of people.
I respect the high court’s opinion, but I think the opinion of “the people,” via their elected representatives, will be just as equally and lawyerly argued and just as equally bias as the high court’s; except that those deciding, unlike the justices of the supreme court, will be democratically elected and accountable for their vote. Where “vital questions” are at stake the American people, in my view, should be their own rulers.
As you’ve seen from the quote above, I’m not alone in my concerns about the power and potential abuses of the U.S. Supreme Court. Besides Abraham Lincoln having serious concerns, Thomas Jefferson, in a letter to William Jarvis, also voiced a strong rebuke of the supreme court’s oligarchic power grab:
You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. (Bolding added).
Thomas Jefferson was right.