The Supreme Court Was Never Meant to Be Kings and Queens

With the leaked Idaho emergency abortion ruling yesterday, it appears the conservatives 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 certiorari and commit the court to hearing a decision, it’s obvious that the most fanatical anti-abortion zealots 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 colleagues convinced them that such decisions this year could doom Donald 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.

Which raises the question: How did the court get so much power that it can overrule both Congress and the president, ignore efforts to hold justices 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 the justices gave that power to themselves.

Not only is such power for the court not found anywhere in the Constitution, but Article 3, Section 2 explicitly puts the Supreme Court under the thumb of Congress, not the other way around:

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 3, which authorized Congress to create the court system.

It included, in Section 3, the mandate that Congress set up the Supreme Court by defining how many justices it would have, where it would 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: “The 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].”

Hamilton explained that the court’s judges had lifetime appointments precisely because it was the weakest branch: “From 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 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.

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 U.S. 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.”

Jefferson 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.”

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.

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 3 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 its fancy.

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

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.