In writing our constitution there was much debate regarding the high court as some founders saw potential for justices to become a legislative arm and make decisions that were difficult to overturn. So, in the end, the Supreme Court became the branch with the least amount of power and were given authority over a limited scope of cases (Article III Section 2) which they were only to issue opinions on. Also, in Section 2 it is worth noting that Congress can regulate and make exceptions to the court’s jurisdiction.
If there is ever an example of the camel getting its nose under the tent it is with the Supreme Court. A good reason for this is the decision Marbury v Madison made on February 24, 1803 where the concept of judicial review arose and from the vantage point of Chief Justice John Marshal made constitutional interpretation for the Supreme court its primary role. Contention still arose over whether a decision by the courts against a law passed was binding or if it was simply something for congress to consider. The opposition to Marshall came from the insistence that Article 1 Section 1 still gives all lawmaking authority to congress so to say that a court decision can legally strike down a law contradicts this.
Now that it has been nearly 220 years since the decision, the powers given to Congress regarding lawmaking still stand. However, due to people in the legal community adapting Marshall’s perspective that the Supreme Court should have a co-equal position with the other branches and the evolution of case law the High Court has gained a position that many of our founders feared. Their decisions have been deemed ‘settled law’ despite Congress’s constitutional hold on lawmaking.
Here’s a problem with the courts holding the power they’ve acquired over time. Take Engel v Vitale and Rowe v Wade which concerned prayer in school and abortion, respectively. Did Congress get to vote on these issues? The people certainly did not. So, these are just two examples in which a small coterie of nine people made decisions that have impacted our nation for decades. Certainly, those on the left can point to cases in which they feel the country did not fare well following a decision from the High Court. We can’t just blame the nine-person oligarchy for these decisions but also Congress for not taking it upon itself to regulate the court and prevent these cases from falling in it’s jurisdiction.
Marshall’s concern to check Congressional power is understandable. However, constitutionally the Executive can decide to enforce laws coming from congress. We know this as veto power. So, there’s already a check on Congress making evermore reason not to have judicial review because in the end the Supreme Court would be holding two branches in check and would be given equal position of power which the founders knew they shouldn’t have.
A Federal Judiciary was never intended to protect our freedoms. With the Executive branch holding the Congress at bay, the High Courts are not necessary. With each state having leaders such as governors and sheriffs the people have officials who can interpose for them if the arm of the Federal Government extends too far and becomes a threat. Not only can state and local officials interpose for us when our rights are threatened but it is their solemn duty as they have sworn to uphold the constitution and protect our God-given rights.
In His Image 