The Coming Supreme Court Fight


Many conservatives were understandably outraged at President Bush’s recent choice of White House counsel Harriet Miers as his nominee to the United States Supreme Court. Bush promised a reshaping of the Court with justices in the mold of Scalia and Thomas but what we have been given are two stealth nominees, one with a very thin paper trail and one with no evidence at all of where she stands on the issues except the words of her mouth, which is generally suspect in Washington. With many outstanding, well-qualified judges with long track records of strict constuctionism at the appellate level to choose from, the conservative movement has been basely betrayed with this latest pick, to say the least.

The upcoming battle will be a difficult one for sure but conservatives in Congress should make a valiant effort and stand on principle here, even if it is a futile cause. Defeating a Miers nomination would send a strong message to President Bush from congressional conservatives. However, should she be confirmed and turn the way of David Souter, all is not lost here. Conservatives have plenty of firepower in Congress and in the states that should be used to put the Court back in its proper constitutional role.

For starters, my fellow conservatives should stop paying lip service to liberal notions of an all-powerful court system. Conservatives boast about the power of the legislative branch and the sway that it has over the federal judiciary but yet work themselves into a panicked frenzy when considering nominees, careful to make sure strict constructionist conservatives are chosen so the decisions will come out like we want them to. This is important and must be done but, irregardless of who is picked, Congress can steer the courts any way it chooses on most issues.

Our brilliant Founders did not intend for the Supreme Court to be nearly as powerful as it has become and made sure that the representatives of the people and the states had power over the unelected judiciary and the sole power to make laws. Alexander Hamilton admitted this, for the most part, in Federalist #78: “The judiciary…has no influence over the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever.”

Courts function merely to administer the law, not to make it. The job of creating law was given to the legislature, in Article I, Section 1 of the Constitution: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives.” It does not mention the Supreme Court.

In fact, if you were to examine an original map of Washington, D.C., as the planners laid out the proposed capital city, you will quickly discover that there was never even a plan for a building to house the Court. This was no accident. The Supreme Court met in the basement of the Capitol building for decades. In fact, the current building in which our infamous Court holds session was constructed during the 1930’s as part of the New Deal. It doesn’t sound like a co-equal branch of government to be shoved in the basement.

Congress has enormous power over the federal courts though they do lack the will to use it. For one, Congress sets the number of justices on the Supreme Court, not the Constitution. The original Court, in 1789, contained only six justices. Eventually that number was raised to seven, then later to its current limit of nine. If you recall, FDR sought to raise the number of seats to fifteen but was rebuffed. Yet Congress is under no constitutional obligation to fill the seat of any retiring or deceased justice. It could simply leave it empty if it so chooses and abolish it. Congress also created ALL appellate and district courts. These courts could be abolished just as easily. And though a judge’s salary can not be touched, there is nothing that protects his office and funds needed to operate it.

In addition, Congress can impeach and remove judges and justices that it views are not acting in “good behavior.” The Founders, in using that phrase, did not mean that a judge in “good behavior” was not a criminal but one who was not fulfilling his oath of office. Using foreign law to make decisions and legislating from the bench are as impeachable as corruption and bribery. However, in today’s current political makeup, gaining a two-thirds majority in the Senate would be next to impossible.

If these powers are not practical today, Congress does possess the power to curb the jurisdiction of the federal judiciary and limit what cases may be decided by it with a simple majority vote. The Supreme Court is given original jurisdiction by the Constitution but in all other cases it has appellate jurisdiction, “with such Exceptions, and under such Regulations, as Congress shall make.” Congress can pass legislation and then simply attach an amendment that states that the federal courts have no appellate jurisdiction in this matter. Case closed.

It has been erroneously suggested recently by many conservatives that Congress should pass a constitutional amendment whereby a Supreme Court decision could be overturned by a two-thirds vote of each house. This is ignorance and stupidity! Congress already possesses amble powers to overturn any and all Supreme Court decisions. There just seems to be a lack of political will to challenge the courts.

But what of the Supreme Court’s authority to interpret the Constitution and strike down laws that conflict with it? Alexander Hamilton, author of Federalist # 78 – 83, which discusses the federal judiciary, felt that the courts had the power to strike down congressional legislation that it decided was unconstitutional. This is not really in dispute today. Yet, as we have seen, Congress can take appropriate action on those matters, should it decide to do so. And Congress, throughout our history, has used legislation to overturn rulings of the Supreme Court.

Those advocating strong judicial powers, however, point to a phrase in the Constitution, in Article III, Section 2, which states that the judicial power shall extend to all cases “arising under this Constitution” as proof that the Supreme Court may take and rule on any case which it pleases, for almost anything can be construed to be a constitutional issue. Yet this is not so. The Constitution does not mention abortion, education, the environment, public assistance, or any of a number of issues taken up by the federal courts.

Along with Congress, the president has his obligation to the Constitution as well. President Thomas Jefferson, who fought John Marshall during the Court’s initial grab for power, did not believe that the judiciary was the all-powerful deciding factor in matters of legislation and constitutional interpretation. “The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.” Here Jefferson admits a key factor in deciding just what the Constitution means. Why does the president and Congress not have as much right as the judiciary to decide whether a federal law stands up to constitutional scrutiny? The answer is obvious – they do!

The Executive Branch, it is often said, must enforce all Supreme Court decisions, yet no word in the Constitution gives the president that power. The chief executive must “take Care that the Laws be faithfully executed.” But as we have seen, a Court decision is NOT a law! Only Congress can pass laws. In fact, past presidents have simply ignored many Court orders. President Jefferson ignored a Supreme Court order to deliver a commission to William Marbury and President Andrew Jackson actually defied John Marshall’s decision in the Cherokee cases and forcefully removed Indian tribes that the Court had declared were a “domestic, dependent nation.” Lincoln ignored Supreme Court Chief Justice Roger B. Taney who ruled that the president had exceeded his power. He even went so far as to write out an arrest warrant for Taney’s confinement! We might not want to go quite as far as Mr. Lincoln but it does demonstrate the early attitudes toward the Supreme Court.

The federal courts have also been in the business of striking down legislation passed in the individual states, a power assumed since the end of the Civil War, when states’ rights and the concept of state sovereignty were destroyed. However, there is nothing in the Constitution that even suggests the federal judiciary can reach down and overturn a law passed in Mississippi, Texas, New York, or any other state. Hamilton outlined federal judicial power in Federalist # 80 and an internal matter within a single state jurisdiction is not included. The federal courts have jurisdiction over cases involving two states in dispute or any other cross-state controversy, such as a citizen of one state suing someone in another, but individual state matters are off limits.

Our state governments, which Jefferson referred to as “the surest bulwarks against anti-republican tendencies” is a key battleground for confronting and regaining control of the federal judiciary. Simply put, we need defiance at the state level. It is high time some courageous governors stood up and declared that no longer will we abide by the rulings of federal courts that interfere in the internal matters of the state. Supreme Court decisions in the past have gone so far as to order states to raise taxes to implement federal desegregation plans and turn loose violent criminals from state penitentiaries to ease overcrowding. State officials that comply with such rulings are cowards and do not deserve to represent the people! I want to see a governor somewhere point his finger at the Court and declare, just as Andrew Jackson did to John Marshall: You have made your ruling, now YOU enforce it!

Conservatives had high hopes to build a strong, strict constructionist Supreme Court with Bush’s two terms but that dream has seemingly slipped from our grasp, probably never to return. But don’t panic my friends! Even if we can’t stop the Miers nomination, we can continue to build and maintain strong, determined conservative leaders in Congress and on the state level.  Then the Supreme Court can have no power over us and will never again decide the issues rightfully belonging to the people!

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