Much has been made of the imminent Supreme Court pick of President Trump, with those on the left seeking to preserve the landmark court decision Roe vs. Wade which, essentially, prohibited states from outlawing abortion. Those on the right would like to see the Roe decision overturned, thereby ending federal sanctioning of abortion. The truth of the matter regarding the Supreme Court is that both political sides are wrongabout not only the Roe decision and its effect should the case be overturned (which this observer highly doubts will happen), but also on what the actual job of the Supreme Court is. All of the hullabaloo underscores not only a deep misunderstanding of the Roe decision with regard to application (or maybe a deliberate error in reportage), but highlights an even larger problem with the Supreme Court, namely, the extension of its power. To try and understand this complex issue, let’s take a look first at the defined power of the Supreme Court as it is laid out in the Constitution of the United States.
The role of the Supreme Court as defined by the United States Constitution is one of interpretation of laws without political or personal bias. Better stated, the Court’s mandate is one of strict neutrality. Period. The very idea that a Justice of the Supreme Court would take a side based on political bent is not only subjecting the Court to the whims of the President who put them there, but also the political winds themselves, placing the members of the Court above all that they see in our government, including the Congress and the office of the President. This is not at all what the founders envisioned when they designed the Supreme Court. The proof of this is Article III in its entirety. While there is much controversy as to the application of the power of both the federal court and Supreme Court’s jurisdiction and power, the fact remains that the Court itself has a fundamental duty to interpret the law based on constitutionality alone, and nothing else. If we look at Article III, section 3, the founders made this clear when they stated that the
“Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations that the Congress shall make”
The key portion seems to be “both as to Law and Fact”. Nowhere does it say, “The Court shall decide based on the political whims of both the populace, the presiding Justices, or the President appointing them, or the Senate who would confirm them.
It would stand to reason, then that the Court has a judicial responsibility to decide cases based on their constitutionality alone and nothing else.
So, how far can the Court go when deciding cases? What exactly is their power? The landmark case that clearly defined that power is found in the case of Marbury vs. Madison (1803)
, where the Madison is James Madison one of the writers of the Federalist Papers, a series of newspaper articles that argued in favor of ratification of the Constitution, as well as defeated presidential candidate in 1800. The Federalist Papers were also co-written by Alexander Hamilton, he of musical fame now, but one of the great minds of all of the founding fathers, and John Jay, the first Chief Justice of the United States.
To put it briefly, the case centered on the premise of judicial review, meaning that the case itself tested whether or not the Supreme Court had the power to review cases in order to strike down laws, statues, and executive actions that ran counter to the Constitution. The Court found that indeed, it did have that power to determine whether a case was constitutional or not. As with all things that involve humans and reason, the Marbury case was much more involved (click the link for more), but the premise of judicial review does hold here.
Judicial review had been determined by earlier court cases as well, but interestingly enough, is not found in the Constitution itself where Article 3 outlines the power of that branch of government. This means that through a series of court cases before the Marbury case and after, the court essentially assigned itself the power of judicial review. For those that are strict constitutionalists, this goes against the very fabric of what the founders envisioned the Supreme Court doing, being an adjudicator of cases and little more. With the Marburydecision, the Court essentially expanded its power, putting it at an almost equal footing with the Congress in that it alone determines the constitutionality of a given law (provided there is a case brought before the Court and they wish to hear it), sawing the teeth of Congress, the designated lawmaking body, down to their nubs in some cases.
Further, the Court’s decision in Marbury brought something known as judicial activism to the fore, whereby the Court itself, again, superseding its power as defined by the Constitution (see the earlier passage I quoted), can actually create law through its decisions. This was not the intended power of the Court at all as defined by Article III, but what has become standard now for judicial activists, primarily those on the political left.
There were a number of important court cases that helped define constitutional breadth and scope for the average person however. Cases such as Miranda vs. Arizona which gave the lines “you have the right to remain silent” for every cop show ever written, but which also gave the poor the right to an attorney, and Tinker vs. Des Moines which cemented the idea of symbolic speech as part of free speech are just a couple of precedent setting cases. In both cases cited, the court did not make law, but rather interpreted existing law in order to enhance the existing constitutional challenge in order to make it clearer. The Court was not in the strictest sense making law but doing what it its mandate by the Constitution says it should do…interpret the law.
The fact is that the Court over the years has become increasingly political and partisan in its approach with Justices like Ruth Bader Ginsburg, a hero to the left actively voicing her political leanings and certainly allowing those leanings to influence her position on the cases brought before her. The same might have been said for the late Justice Anthony Scalia except if one looks at his writings on the cases he decided, his decisions were based on existing law rather than his political leanings, much like Justice Clarence Thomas. The result, however, is to paint both as conservative ideologues much like Ginsburg and Sotomayor are seen as ideologues for the left.
In truth, the court is more divided not on political ideology but rather if there should be strict interpretation of the Constitution with those on the right leaning toward strict constructionism, or a more loose interpretation, allowing for judicial activism like Ginsburg and Sotomayor would prefer.
The fact is that if one is going to go strictly by what is said in the Constitution itself via Article III, the only way to make decisions is to do exactly what the Constitution says to do, judge cases on their merit and application to the Constitution itself and nothing more.
For further reading, consider these sources
Civil Liberties and the Constitution – Twiley Barker
Liberalism and its Challengers– Alonzo Hamby
A Matter of Interpretation – Antonin Scalia
The Court and the Constitution– Archibald Cox