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Friday, June 19, 2020

Thoughts on the Power of the Supreme Court



   ...Alexander Hamilton argued that the Court was the Constitution's "least dangerous" branch. The legislature "commands the purse" and "prescribes the rules by which the duties and rights of every citizen are to be regulated," he explained; the executive "holds the sword of the community." But the judiciary? "It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments."


...When it comes to the Supreme Court's true potential, the anti-Federalist writer who styled himself "Brutus" came nearer than Alexander Hamilton to the truth. American judges are independent, he said, "in the fullest sense of the word." There is "no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature." In sum, "they are independent of the people, of the legislature, and of every power under heaven."

...We should start with judicial methodology. Conservatives have long advocated that judges give the Constitution's text the meaning it bore at the time it was adopted. That is right as far as it goes, but even this originalism can all too easily fuel judicial imperiousness if it is not informed by the Constitution's overarching — and original — goal: participatory self-government. This means that even as the Court goes about searching for the Constitution's original meaning, it should bear in mind that it is not the only constitutional interpreter. And its judgments should reflect that reality.

... the Court should not simply demand that Congress agree with the Court's judgment. On the contrary, it should ask whether Congress's judgment is reasonable — or fairly possible — in light of constitutional text and original meaning. If it is, the people's interpretation should prevail. Congress and the people, after all, are entitled to interpret the Constitution themselves.

... Recall the anti-Federalist Brutus's point that Supreme Court justices are independent of "every power under heaven," not least because they hold office for life. That independence can breed in its beneficiaries a certain over-estimation of the Court's importance as well as an over-confidence in the justices' capacity to get constitutional questions right. With time, an individual justice may come to believe that, though interpretive questions are generally hard and should be left whenever possible to the political sphere, he can personally be trusted to decide correctly. Multiply this mentality by nine, and it becomes a formula for judicial aggression.

... As for the Supreme Court, it too has done the country much good. But for all its proud history, it has proved to be a dangerous institution — the most dangerous, in fact, of any branch of government.

The Court's very design makes it a threat to the vital separation of constitutional law and politics. And the Court's praxis over the past half-century has turned that threat into very real harm.





... Knowing that they, like the Pope, lack an army, and that nine sages appointed for life constitute America’s least democratic branch of government, Supreme Court justices traditionally operated with “judicial restraint.” The Supremes picked cases sparingly and decided cautiously, deferring to the popular will as expressed by state legislatures, the Congress, and the president. The Constitution does not explicitly allow judicial review—declaring executive and legislative acts unconstitutional. When Chief Justice John Marshall established judicial review in Marbury v. Madison (1803), he asserted the power theoretically. Only in 1810 in Fletcher v. Peck did the Supreme Court first strike down a state law.

Thanks to:



The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself. The Court established this doctrine in the case of Marbury v. Madison (1803).

Thanks to:


This is not a left/right point. It’s a point about how the meaning of our Constitution should be finally determined. Is it really the case that the fundamental law of the land, made by “We, the People,” depends on the ideologically driven whims of five lawyers?

There is a place for judicial review in constitutional democracy, just not for judicial supremacy. The idea that the justices have final say over the meaning of our Constitution — that once they have spoken, no matter what they say, our only recourse is the nearly impossible task of amending the Constitution or waiting for some of them to change their minds or die or retire — ought to offend anyone who believes in democratic government...

..That the people who wrote and ratified our Constitution wanted or expected the court to have such power is a fairy tale. They emphatically did not fight a revolution to replace a monarchy with an oligarchy.

Thanks to:





Moreover...

"There is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislature. Were it jointed with the executive power, the judge might behave with all the violence of an oppressor."

 Montesquieu

 

   This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power1; 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; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers.''2 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

 ~ Alexander Hamilton

Article: Son of deceased Justice Scalia

 

https://www.foxnews.com/opinion

I’ve frequently been asked in the past few weeks what my father, the late Supreme Court Justice Antonin Scalia, would think about the contentious battle just waged over Judge Brett Kavanaugh’s nomination to the nation’s highest court.

Would he have been surprised by the heated debate, political maneuvers, protests, last-minute delays and uncorroborated allegations of sexual misconduct that we saw during now-Justice Kavanaugh’s confirmation process?

Although I don’t think my father (or anyone) could have predicted the twists and turns of the past several weeks, I don’t think he would have been shocked by the no-holds-barred fight over a Supreme Court vacancy, either. He long ago warned Americans about the excessive intrusion of politics into the judicial appointment process. And he explained that a large share of the blame belongs to the justices themselves.

My father believed that a major reason the judicial confirmation process has become so heated is that federal judges too often exceed the role envisioned by our nation’s founders and usurp the power of elected representatives.

Alexander Hamilton famously argued “that the judiciary is beyond comparison the weakest of the three departments of power” and that “the general liberty of the people can never be endangered from” the judicial branch.

But Hamilton qualified that claim. He said it would only be true as long as “the judiciary remains truly distinct from both the legislature and the Executive.” Hamilton agreed with the French political philosopher Montesquieu, who warned that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”

Maintaining that separation means limiting the role of judges. My father explained that for most of American history, Supreme Court justices recognized that the meaning of legal texts – including the Constitution – did not change.

Judges understood that their job was to interpret that original meaning – referring to tradition, history and precedent when necessary. When dealing with laws and statutes, this approach is known as textualism; in reference to the Constitution, it is called originalism.

But over the course of 20th century, judges began to think of the Constitution as a “living document” whose meaning changed with the times. That may seem like a reasonable idea at first; after all, the Constitution was written in 1787 and a nation’s interests and priorities can change dramatically over generations.

Shouldn’t the Constitution keep up with the times?

But in fact, the Constitution establishes democratic processes, both in the states and in Congress, with the flexibility necessary to adapt to changing circumstances. This can happen through new laws and through constitutional amendments. That is, for example, how women earned the right to vote: not by judicial decree, but through the 19th Amendment.

On the other hand, if the Constitution is a living document, consider who ends up determining its new meaning: unelected judges with lifetime appointments – men and women who are intentionally protected from the will of voters at the ballot box.

As a result, many debates and compromises that should have occurred in the political realm have been short-circuited by the judicial branch for decades.

The most notorious example of this is Roe v. Wade, the Supreme Court’s 1973 decision discovering a constitutional right to abortion. The justices believed they were settling a contentious national issue. But they were doing nothing of the sort; they were inflaming it.

When Americans realized that lower court judges and Supreme Court justices were exercising their will rather than just their judgement, judicial nominations became much more heated. My father didn’t like this change, but he understood why it happened.

“A freedom-loving people respectful of the rule of law may be expected to let lawyers decide what a constitutional text means; but they cannot be expected to let lawyers decide what a Constitution ought to say,” my father said.

Or as he put it in another speech, “no court can expect to remain immune from severe political pressure ... if it assumes the role of inventing solutions for social problems instead of merely applying those solutions prescribed in democratically adopted statutory or constitutional text.”

After all, lawyers know the law better than the rest of us, but their value judgments are not necessarily superior to anyone else’s.

One way to help make our judicial confirmation battles less polarizing, then, would be for judges to return to the more limited role they had held for most of our nation’s history: applying laws and statutes according to their text and interpreting the Constitution according to its original public meaning, using history, tradition and precedent as guides.

This wouldn’t make every Supreme Court decision unanimous. Judges can interpret history and tradition differently, and sometimes the meaning of a text is ambiguous. Nor does it mean courts would never again make a controversial ruling.

But if federal judges returned to the more modest approach our Founding Fathers envisioned for them, they would be less likely to rule according to their preferred policy preferences and more likely to leave political decisions to our elected representatives.

This change in perspective is long overdue, but it will not happen overnight. Right now, it is primarily only Republicans who see the value in originalist judges like Brett Kavanaugh – and we saw the lengths to which Democrats fought his confirmation.

My father devoted considerable time to delivering speeches across the country and around the world explaining the advantages of originalism and textualism. He knew that persuading people to this way of thinking would help return the judicial branch to its proper status as what Hamilton famously called “the least dangerous branch” and help subdue the intensity of the nomination process.

 

Moreover…

https://www.thedailybeast.com/who-let-the-supreme-court-make-laws

 

Who Let the Supreme Court Make Laws?

The nine justices of the least democratic branch of government have see-sawed back and forth on how far the Bench should reach when ruling.

Gil Troy

Gil Troy

 

07.11.15 12:00 AM ET

 

iStockphoto

Yet another big Supreme Court finale this June underscored the court’s supreme and arbitrary power today. Cartoonists aptly sketch the supersized Supreme Court as dwarfing President Barack Obama. Whatever you think of the Court’s gay marriage or health care decisions, one thing is clear: this is not the shy, retiring court America’s Framers imagined. We have come a long way from Andrew Jackson’s popular but probably apocryphal response to the Chief Justice’s defiant decision invalidating a state law in Worcester v. Georgia (1832): “John Marshall has made his decision; now let him enforce it!

Knowing that they, like the Pope, lack an army, and that nine sages appointed for life constitute America’s least democratic branch of government, Supreme Court justices traditionally operated with “judicial restraint.” The Supremes picked cases sparingly and decided cautiously, deferring to the popular will as expressed by state legislatures, the Congress, and the president. The Constitution does not explicitly allow judicial review—declaring executive and legislative acts unconstitutional. When Chief Justice John Marshall established judicial review in Marbury v. Madison (1803), he asserted the power theoretically. Only in 1810 in Fletcher v. Peck did the Supreme Court first strike down a state law.

The disastrous Dred Scott case (1857) confirmed the Supremes’ skittishness. This terrible decision branding all blacks non-citizens overreached badly, triggering Northern anger and a Congressional backlash by preventing Congress from prohibiting slavery in new territories. Seven decades later, Chief Justice Charles Evans Hughes still considered it the Court’s “greatest self-inflicted wound.”

The Court next overstepped during the Progressive era, when judicial conservatives repeatedly nixed popular legislation protecting workers against corporations. In the infamous Lochner v. New York¸ the Court prevented New York’s legislature from limiting bakers’ working hours to 10 hours per day or 60 hours per week. Such laws constituted “meddlesome interferences with the rights of the individual,” the Court proclaimed, violating the Fourteenth Amendment’s guarantee that no state shall “deprive any person of life, liberty or property without due process of law.” Subsequently, when denouncing “Lochnerism,” liberals rejected an overzealous Court wielding this “due process” clause to protect corporations, who were considered “persons.”

During the Great Depression, Franklin Roosevelt’s liberal welfare state-ism intensified tensions between ever-bigger government and the conservative court’s 14th Amendment-based restrictiveness. Cries to “trust the people” and override judicial restraint led to Roosevelt’s attempt to reorganize the federal judiciary in his favor. Liberals disdained the “nine old men” with lifetime jobs, trusting the presidency, the Congress, the state legislatures, to expand government.

But the timely conversion of a once-conservative judge who suddenly became the swing vote making for 5-to-4 votes in favor of New Deal laws stilled calls to quash the Court. (This was called the “switch in time that saved nine.”)

The Court leaped further left under the placid Republican President Dwight Eisenhower’s Chief Justice, Earl Warren, who redefined court activism as liberal, expansive, and rights-oriented. In the 1954 Brown v. Board of Education school desegregation game-changer, Warren confronted Justice Felix Frankfurter’s suddenly anachronistic liberal fear of judicial activism. Seeking unanimity, Warren used social science to sidestep Court precedents, especially Plessy v. Ferguson (1896), the case legitimating separate but equal facilities. I usually teach about Brown by showing students my (now-20-year-old) daughter’s once-favorite black doll, “Sally.” Warren’s decision quoted research showing that even most black girls preferred white dolls to dolls like Sally, proving that separate education instilled within African-Americans unfair—and now unconstitutional—feelings of inferiority.

Although desegregation became broadly accepted, the Warren’s court judicial activism sparked conservatives’ calls for “judicial restraint.” While there is something deliciously democratic about nine judges interpreting a 228-year-old document to protect minority rights in a free nation, that same document empowers just five justices to revolutionize life for more than 300 million Americans, by, for example, detecting a Constitutional right to privacy in the “penumbra” emitting from the First, Third, Fourth, and Fifth Amendments. That privacy penumbra became the basis of Roe v. Wade (1973), the divisive pro-choice decision, guaranteeing decades of abortion fights that might have been avoided if the more populist states or the Congress had decided.

In today’s partisan, fickle times, both conservatives and liberals champion judicial restraint—when convenient. Predictably, after the Reagan Revolution, a conservative court became more activist to undo some Warren Court decisions and advance Republican interests. In 2000, a Reagan-boosted majority narrowly decided that the Florida State Supreme Court could not authorize another extended recount, essentially making George W. Bush president in Bush v. Gore. Justice John Paul Stevens dissented, blasting this “federal assault on the Florida election procedures,” and declared, “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

Similarly, a recent New York Times editorial complained that, too frequently, today’s “conservative majority has changed the law to disfavor the less powerful.” Breaking his promise of “judicial restraint above all else,” Chief Justice Roberts’s court “has been far too willing to undermine or discard longstanding precedent,” complained the Times. Naturally, such distaste for judicial activism did not stop the Times from declaring the recent Obergefell v. Hodges decision “A Profound Ruling” that “Delivers Justice on Gay Marriage.”

Once again, conservatives repudiated judicial activism. In his 29-page Obergefell dissent, Chief Justice John Roberts mentioned Lochner 16 times. Recalling how justices used to “elevate their own policy judgments to the status of constitutionally protected liberty,” Roberts charged: “Today, the majority … revives the grave errors of that period.” Indeed, five pro-gay marriage judges read new guarantees of “dignity” into the penumbral rights of privacy, invoking historians’ understanding of how marriage developed rather than social scientific experiments testing girls and their dolls.

Wherever you stand on the legitimacy of Bush’s presidency or gay marriage, champions of democracy should stop championing judicial fiat over democratic decision-making. Shouldn’t the Congress and the president have boldly passed a law or constitutional amendment authorizing gay marriage? It is unfortunate that gay marriage entered into legal legitimacy though the slippery Supreme Court backdoor rather than through the more democratic, populist front door.

Or to put it another way: If, in 1965, the Supremes sang, “Stop! In The Name Of Love,” the justices should occasionally say to themselves “Stop legislating! In the name of law.”

Moreover…

https://www.npr.org/2018/09/02/644185178/new-book-warns-of-the-supreme-court-s-power

 

 

Author Interviews

New Book Warns Of The Supreme Court's Power

September 2, 20185:16 PM ET

Heard on All Things Considered

With the nomination of Brett Kavanaugh pending, NPR's Michel Martin interviews David A. Kaplan about his new book, The Most Dangerous Branch: Inside the Supreme Court's Assault on the Constitution.

MICHEL MARTIN, HOST:

The Senate Judiciary Committee opens hearings Tuesday into the nomination of Brett Kavanaugh to the U.S. Supreme Court. Democrats have tried unsuccessfully to slow this down. They've asked to review more documents relating to Kavanaugh's past work. They've also questioned the propriety of confirming another Trump nominee when the court may have to rule on sensitive legal matters involving the president.

With all this in the air, we're going to begin our program today with a conversation about a new book out Tuesday. It's called "The Most Dangerous Branch: Inside The Supreme Court's Assault On The Constitution." The title is a play on Alexander Hamilton's assertion in the Federalist Papers that the judiciary would be and indeed should be the least dangerous branch of government. The author of the new book, David A. Kaplan, argues that's not the case now and that Americans have come to accept a court that repeatedly oversteps its role.

DAVID A. KAPLAN: Obviously, the president can initiate war and send troops to faraway lands, and Congress can pass foolish laws or pass no laws at all. But I think, in the long run, what the Supreme Court has done in recent decades poses a more insidious risk to self-government. I think the court, by inserting itself so often into controversial political, social and political issues and largely overruling what legislatures, what other branches have done, hurts its own legitimacy. It wounds the other branches. It distorts presidential elections, like we saw most dramatically in 2016. And it helps lead to the kind of circus we're going to see this week on Brett Kavanaugh.

MARTIN: When did this start? I mean, was it ever thus? I mean, you make the case that these justices are actually really driven more by their political views to reach a certain conclusion. Was it always that way, or did it start somewhere?

KAPLAN: You can see strands of it at different points of the 20th century, but I think the important marker is Roe v. Wade in 1973, where the court issued a ruling declaring a constitutional right that, at best, was controversial. I think it got worse. For example - I can't - you can't discuss every case - is Bush v. Gore in 2000. Completely different context - disputed presidential election - but I argue in the book they're kind of symbolic bookends - that Bush v. Gore was the right's revenge for Roe v. Wade. Let the court decide.

And Bush v. Gore was the classic instance where Congress was designated in the constitution to resolve disputed presidential elections. Congress had no role, and they didn't raise a peep when the nine unelected, unaccountable justices across the street at the marble temple decided the election. The Roberts court in the last ten years has only accelerated the trend.

So whether it's on gun control, campaign finance and Citizens United, voting rights under the Voting Rights Act of 1965, the court has taken unto itself the role of resolving those policy disputes. And I argue in the book no. In those cases, what they should have said is not our job.

MARTIN: You have a lot of reporting in the book about the personality dynamics on the court. Is there anyone on the court who takes the position that you do - that the court is consistently overstepping its authority? Has anyone attempted to intervene in this?

KAPLAN: They all preach restraint, but I think the justice on the court who most closely behaves in the way that I would argue was appropriate actually is Justice Breyer on the liberal wing of the court. Justice Breyer has voted to uphold more acts of Congress than any other justice on the court.

MARTIN: So you argue that this kind of activism may have started with Roe, but then the conservative wing has - I don't know what you want to say - taken the ball and run with it. I mean, I'm asking you in part to speculate, but do you think if, say, for example, President Obama had succeeded in having his nominee confirmed that perhaps it would not continue as it does?

KAPLAN: Merrick Garland, I think, would have been quite close to Justice Breyer. Obama picked Garland not because he was his ideal kind of justice but because - for political reasons. In the 2016 presidential election, after Justice Scalia suddenly died, you heard liberals and conservatives, Trump supporters and Clinton supporters both saying the next justice could well determine American social policy for a generation or more. All they were disagreeing about is who that justice would be. Nobody questioned whether we ought to be giving that kind of power to one judge.

MARTIN: Honestly, Mr. Kaplan, it's almost like you've expressed publicly and deeply reported and researched what many people have been saying privately, which is that this branch has become another political entity and that it exists to further the political agenda of a particular group of people. So if citizens share your concern - that this is not what the founders intended - what should they do?

KAPLAN: Well, I think citizens will say that when it suits them, so that when the court constitutionalizes same-sex marriage, you don't hear many supporters of same-sex marriage criticizing the court taking the issue on. I do. Same thing with Roe v. Wade. And, on the other side of the coin, if you support gun rights, if you think an individual has a right to have a handgun in the house, then you're altogether thrilled when the Supreme Court says you do instead of saying, I would have preferred to achieve that victory legislatively.

MARTIN: One tidbit from the book that's stood out for me - there were a number - but that Sandra Day O'Connor, the former justice, the retired justice, unusually chose to retire for personal reasons, expressed regret about her vote in Bush v. Gore.

KAPLAN: Well, she - in the later years, she expressed regret. Maybe it was better for the Florida Supreme Court to have handled the matter. But what I report in the book, her husband, John O'Connor, shortly after Bush v. Gore, told a dinner table of guests at a charity function that his wife knew that the decision was wrong when she made it in 2001. But she did so because she wanted Bush to win. She didn't feel she could - that she wanted to retire under a Democratic administration, and that meant siding with Bush. She wanted to leave the court because her husband was increasingly ill with Alzheimer's.

MARTIN: That is very disturbing that such a consequential decision is made for really very narrow personal reasons. And what should we conclude from that?

KAPLAN: I think what you conclude from that is that, to the extent that these are human beings, it's all the more reason for members of the court to be humble, to be restrained, to be minimalists, to be gradualists. And I think the democratic branches - state legislatures, Congress and the elected presidency, whatever you think about this president - I think they suffer from that kind of court.

MARTIN: That is former Newsweek legal affairs editor David A. Kaplan. His latest book is called "The Most Dangerous Branch: Inside The Supreme Court's Assault On The Constitution." David A. Kaplan, thanks so much for talking with us.

KAPLAN: Thank you for having me.

Copyright © 2018 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

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https://www.heritage.org/crime-and-justice/commentary/has-the-supreme-court-become-too-powerful

 

Has the Supreme Court Become Too Powerful?

Feb 25th, 2016 2 min read

https://www.heritage.org/sites/default/files/styles/author_card_commentary_single/public/profile-photos/Holmes_Kim.png?itok=Fy9DeMxNCOMMENTARY BY

Kim R. Holmes, Ph.D.@kimsmithholmes

Executive Vice President

Kim R. Holmes is the Executive Vice President at The Heritage Foundation.

  Copied 

The stakes are high -- very high. Finding a replacement for deceased Supreme Court Justice Antonin Scalia will be a battle royal. But why should one government official's position be so existentially important?

Yes, control of the Supreme Court hangs in the balance, but that begs the question of why the court itself is so powerful. Could it be that the answer to that question tells us something about our increasing inability to govern ourselves as a free people?

Let's face it. Ever since at least the 1960s (and frankly even before), we have increasingly allowed the Supreme Court to decide controversial issues we have been unwilling to solve legislatively.

From civil rights to abortion to the issue of gay marriage, the high court has ruled on key issues well outside the legislative process. New constitutional rights were created out of whole cloth. If abortion couldn't be legalized at the ballot box, or if gay marriage could not be made lawful by Congress or the states, a majority of the Supreme Court -- a mere five people -- would step in and do it for us. Using the power of judicial review, a new policy would be imposed simply by redefining it as a constitutional right.

The practice of judicial fiat is so commonplace we seldom realize how radical it is. We are, quite simply, losing our sovereign power to govern ourselves. We have allowed the courts -- the Supreme Court, in particular -- to become too powerful.

No single government official outside the president should be so important that his or her replacement could shift the course and destiny of the nation. And yet that is precisely the case with finding a replacement for Scalia. No matter which way it goes, the next Supreme Court justice will decide the balance of power of an institution that has arguably become more powerful than the Congress and as powerful (at least) as the presidency.

This was not what the Founding Fathers intended. Sure, we live in a modern age in which a lot of water has flown under the bridge of judicial review, but that's precisely the problem. We have allowed those waters over time to become a flood, swamping in some cases the high court's main purposes of safeguarding our existing rights and preserving the rule of law.

The irony should not be lost on us that it has been primarily liberal activists who have tried to hijack the court to get by judicial fiat what they could not obtain legislatively. For all their professed love of "democracy" -- rule by the people -- they have resorted to tactics that actually overturn laws passed legitimately by democratic legislatures.

The very insularity that the founders had intended to protect the high court from the political passions of the times now serves those passions outright. It is not uncommon for Supreme Court justices to decide cases based on what they think (perhaps "divine" is a better word) the people or legislators really want.

Perhaps based on opinion polls, for example, Justice Anthony Kennedy may have thought he was merely delivering what the people wanted when he decided in favor of gay marriage. But in doing so, he was overturning actual democratic votes that over the past 10 years showed a 61 percent to 39 percent majority against gay marriage when the issue had been placed on the ballot.

Should not actual votes count more than opinion polls?

As I explain in my forthcoming book, "The Closing of the Liberal Mind":

"Ultimately judicial activism is harmful not only to constitutional government but to democratic self-governance. When judges try to ram through their policy preferences by contorting texts, abusing precedents, and making up new constitutional rights, they undermine the credibility of both the Constitution and democracy."

That is why, now more than ever, the next Supreme Court justice must be someone who respects not only the original intent of the Constitution -- what Scalia called "originalism" -- but the need to restrict the policy activist role played by the court. Nothing less is at stake than our ability to govern ourselves as a free people.

 - Kim R. Holmes is a distinguished fellow at The Heritage Foundation.

Originally distributed by the Tribune Content Agency

 

https://www.nytimes.com/roomfordebate/2015/07/06/is-the-supreme-court-too-powerful/the-supreme-courts-power-has-become-excessive

 

The Supreme Court’s Power Has Become Excessive

Larry Kramer

Larry Kramer, president of the William and Flora Hewlett Foundation, is a constitutional historian and the author of “The People Themselves: Popular Constitutionalism and Judicial Review.” He is a former dean of Stanford Law School.

UPDATED JULY 6, 2015, 5:05 PM

“You must vote,” I often hear, “because the next president will pick who sits on the Supreme Court!” That such a statement should even be made tells us that something has gone seriously wrong with our democracy. Certainly the Supreme Court has a role in American government, but not the overblown one it has come to play.

That five ideologically driven lawyers should have final say over the Constitution's meaning should offend anyone who believes in democracy.

Liberals are happy with the court right now, because they got some big wins in June. I happen to like those outcomes, too, but I don’t understand why progressives would overlook how the court has systematically done its best to undermine everything they care about for the past 40 years — as it likewise did for the first 150 years, until the Warren Court flipped things around for a short time in the 1950s and 60s. Plus, the outcomes last week could just as easily have gone the other way, and then what? Do same-sex couples think they had no rights before the Supreme Court spoke, and have rights after only because five justices said so? What if Justice Kennedy had woken up on the other side of the bed the day the court ruled? 

This is not a left/right point. It’s a point about how the meaning of our Constitution should be finally determined. Is it really the case that the fundamental law of the land, made by “We, the People,” depends on the ideologically driven whims of five lawyers? 

There is a place for judicial review in constitutional democracy, just not for judicial supremacy. The idea that the justices have final say over the meaning of our Constitution — that once they have spoken, no matter what they say, our only recourse is the nearly impossible task of amending the Constitution or waiting for some of them to change their minds or die or retire — ought to offend anyone who believes in democratic government.

It rests on a myth: that the court needs this overweening power to protect minorities. Yes, the court has occasionally done so, but much more often it has done the opposite. Time and time again, we have seen it take political movements and legislation to get rights and make them secure. Virtually no progress was made on race, after all, until Congress enacted the Civil Rights Acts of 1964 and 1965 — laws the Supreme Court has been working hard for years to weaken and destroy. That the people who wrote and ratified our Constitution wanted or expected the court to have such power is a fairy tale. They emphatically did not fight a revolution to replace a monarchy with an oligarchy.

 

 

https://www.quora.com/Why-does-the-US-Supreme-Court-have-so-much-power

 

Answers

Benjamin McLean

Benjamin McLean, B.A. Philosophy, University of Missouri–Kansas City (2015)

Answered Sep 6

 

The American Founding Fathers believed that by making the Supreme Court immune to the need for re-election, they would be placing it above party politics and that everyone would equally desire to appoint justices who would be honest, which in this context means they would strictly follow the law.

Neither of those naive beliefs have turned out to be true. Making the Court immune to re-election has made it the most partisan of all the three branches and has caused one of the two major parties (the Democrats) to prefer openly dishonest justices (which means they make up new policy based on their own partisan prejudices) rather than honest ones. (who strictly follow the law)

Decisions like Griswold v Conneticut, Roe v Wade and Obergefell v Hodges took social issues which the American people were very active in discussing and legislating about in their states, and forced controversial policies on everyone against both the text of the Constitution and the will of the people, taking away the people's ability to make these decisions in their state and local governments. This ability to completely ignore the law, and make arbitrary new laws makes the Supreme Court justices the true rulers of the American system of government, beside which all other departments decision making power is insignificant and temporary at best.

If you didn't want Republicans stacking the bench with honest justices, then maybe you shouldn't have first stacked it with dishonest ones and then killed the filibuster.

 

 


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