CounterPunch Exclusives

CounterPunch Exclusives

The Supreme Court: Our Surrogate King for 223 Years

Photo by Tim Mossholder

A king is a study in absolutes. His word is final, the law of the land, and he is accountable to no one, possibly excepting God.

Isn’t that a credible description of our Supreme Court? Its word is final, the law of the land, and its justices serve for life, unaccountable even to the presidents who appoint them.

Limitless in power, totally isolated, the Court can inflict great harm to the nation. It has for example eviscerated the Voting Rights Act of 1965 in two subsequent decisions, Shelby County v. Holder in 2013 and Louisiana v. Callais just this year. And now the former Confederate states are Jim-Crowing their black citizens all over again, kneecapping the impact of their votes. Discriminating against black voters in the South is once again, incontestably, the law of the land.

The Supreme Court can do such things by declaring laws or parts of laws to be unconstitutional and therefore invalid. The Court can do this because today it holds a power known as judicial review. It can tell the makers of laws—an elected Congress and an elected President—“You were wrong and we are right in saying so.”  How absolute is that?  Supreme Court justices were never elected, but they nullify laws emplaced by people who were. How anti-democratic is that?

This is not remotely what the Framers of the Constitution intended.

Article III Section 2 specifies what the Supreme Court can do. It functions all but exclusively with appellate jurisdiction. In street language that means the Court can do either of two things: it can uphold a lower court decision, or overturn it.  Nothing else. That’s it. The Court is empowered to sit in judgment of law cases. Nowhere is it empowered or even obliquely allowed to sit in judgment of the laws. The Constitution simply does not grant the Supreme Court the power of judicial review.

The Framers meant the Court to be subordinate.  In Federalist 78 Alexander Hamilton said this:

“The Judiciary is beyond comparison the weakest of the three departments of powers…it can never attack with success either of the other two [branches]…”

And in Federalist 81 he was explicit:

“…there is not a syllable in the plan under consideration [i.e. the Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution…”

 Today’s Supreme Court invalidates laws without a speck of Constitutional authority, and it has done so for 223 years.

That takes us back to 1803 and the infamous Supreme Court case of........

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