Our Unconstituional Supreme Court

Whenever SCOTUS rules, as it did in predictably protecting the status quo of the business world in the Aereo case, or in passing judgment on President Obama’s recess appointment, I am mindful of how it has no right of judicial review in the words of the Constitution, except for the fact that it simply assumed that role without justification.

The Supreme Court’s power to interpret the Constitution stems from an exceedingly liberal reading of the document. It was simply made up, having no basis in the Constitution’s words.

Today, we take it for granted that the Supreme Court can strike down laws that it deems unconstitutional, or interpret their adaption as it sees fit. But that was not considered legally possible until more than a decade after the Constitution’s adoption, when a Virginia frontiersman invented a new role for the judiciary.

“It is, emphatically, the province and duty of the judicial department to say what the law is,” wrote Chief Justice John Marshall in Marbury vs. Madison, an 1803 Supreme Court opinion that forever changed American constitutional law.

Marshall, a western Virginia woodsman and Revolutionary War hero, had persuaded his fellow justices to declare a federal law unconstitutional, even though the Constitution specifically gave that power to no one.

In assuming a right to decide what the Constitution means, Marshall, then 48, created a legal principle that reached well beyond his 34 years at the helm of the Supreme Court. His work underlies momentous rulings issued generations later, for good or ill.

John Marshall
John Marshall

“Marshall had the wit and courage to make the most of his opportunity,” said former Chief Justice Warren Burger in a London speech in 1972. “He was the Great Chief Justice on our side of the Atlantic. How could there have been a greater one?”

It was during his Revolutionary War years that Marshall saw a need for strong central government, a lesson he remembered on the court as he engineered ways to strengthen federal powers.

At age 21, Marshall served with Gen. George Washington during the miserable winter at Valley Forge, when the loosely knit Colonies nearly bungled their bid for independence. Even though clothing, food and ammunition were plentiful, the lack of centralized authority kept the supplies from reaching the soldiers.

Seeing this handicap led Marshall later to write an opinion expanding the power of the federal government to control transportation networks.

Marshall’s career as a leading federalist began soon after the war. He debated Patrick Henry, the most eloquent anti-federalist, in favor of ratifying the proposed Constitution.

Washington offered him several jobs in the new government, including those of attorney general and minister to France. Marshall declined in favor of making money to compensate for his family’s losses in the war.

He spent only two months in law school, but his natural skills as a tactician and an incisive speaker made him one of the country’s highest-paid lawyers, earning more than $5,000 a year. Not intrigued by the philosophical debates of his more educated contemporaries, he preferred the thrill of arguing real cases.

Even so, a few potential clients were put off by Marshall’s eccentricity. Shunning the powdered wig and satin breeches favored by most lawyers, Marshall wore plain linen clothes and bundled his hair in a ponytail. A bit absent-minded, he sometimes misplaced important court documents, and his eyes wandered during conversations that bored him.

Marshall’s financial success eventually allowed him the luxury of public office. After stints in the Virginia Legislature and the U.S. Congress, he became minister to France under President John Adams.

As Adams prepared to leave office, the post of chief justice became vacant for the fourth time in 12 years. The Supreme Court was not considered a very important branch of government in its early days, and few were interested in serving on it.

Adams knew that this time he needed a strong federalist in the job — someone devoted to a strong central government. Thomas Jefferson was taking over the presidency, and as a staunch anti-federalist he could be expected to weaken much of the federal power gained by Washington and Adams (although he turned out to be far more friendly to power once he had some).

Adams turned to Marshall. In his third year of office the new chief justice entered a showdown with Jefferson in Marbury vs. Madison. Although Marshall’s invention of the court’s right to interpret the Constitution escaped immediate notice by the press and public, Jefferson was enraged.

Jefferson warned that letting the court decide what the Constitution means would make the document “a mere thing of wax in the hands of the justices.” He believed that each branch of government “has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action.”

With the Marbury decision, Marshall began the practice of issuing written opinions. During his next three decades on the court, he often pleased the federalists by using interpretation to expand many powers granted to the federal government under the Constitution.

The jurist’s immeasurable contribution to federalism led Adams to call his appointment of Marshall “the pride of my life.”

47 thoughts on “Our Unconstituional Supreme Court”

  1. Indeed, Poobah, nice piece. That Marshall guy must have done the nation a favor in Marbury since it rightly pisses off the states’ righters. Haven’t thought about Marbury except in passing since law school.

  2. What about all the cases in recent history, like Roe v Wade, or school desegregation where the Supreme Court has used this power to do good?

    The USA is not the only place where “judicial review” of laws is practiced; the other important one is the European Union.

    From Wikipedia…

    Differences in organizing “democratic” societies led to different views regarding judicial review, with societies based on common law and those stressing a separation of powers being the most likely to utilize judicial review.

    Nevertheless, many countries whose legal systems are based on the idea of legislative supremacy have learned the possible dangers and limitations of entrusting power exclusively to the legislative branch of government. Many countries with civil-law systems have adopted a form of judicial review to stem the tyranny of the majority.

    Though a common-law system is present in the United Kingdom, the country still has a strong attachment to the idea of legislative supremacy; consequently, judges in the United Kingdom do not have the power to strike down primary legislation.

    However, since the United Kingdom became a member of the European Union there has been tension between its tendency toward legislative supremacy and the EU’s legal system, which specifically gives the Court of Justice of the European Union the power of judicial review.

  3. The problem with the court these days IMHO is the number of justices on it. The Court has become strongly politicized due in large part to the efforts of Reagan and the Bushes, countered by Clinton and Obama. Presidents before Reagan tried to swing the balance of the court to their political bent, and many (conservatives) would argue that the court became politicized as we see it today (but with a liberal bent) under Earl Warren, but it’s a tough argument to make since Eisenhower appointed him. Regardless, on issues that are amenable to decision based upon the two major parties’ views, the court has become a very strong 2-1-2 balance, with (in my view) a decided rightward leaning swing vote. Make it an even number of justices and I’d bet you’d see much more well reasoned arguments and decisions on divisive issues.

  4. pogo, yep, Congress can certainly mess with that. And with an “open seat” presidential election coming up, now would be a good time to add a justice, make it effective in the next term, give the parties something to really fight for.

  5. Let me echo the sentiments of a nice piece, Craig.

    Pogo… making it 8 justices instead of 9 is an intriguing idea. That way if the justices were split, one side would have to persuade someone on the other in order to enact a decision.

  6. Well, poobah, since Congress sets the number of seats (and the two houses can’t agree that it’s Thursday) my desire to see that change is certainly a pipe dream.

    Renee, the Marshall Court had 4 justices and the court has had as many as 10 justices, so it’s an intriguing idea but it’s not exactly a radical proposal.

    I agree Poobah, Scalia was born and raised a cantankerous old man and had that role perfected long before he was appointed by Ronnie to screw up the laws of the nation.

  7. It’s not that I’m against judicial review powers, just think it ought to be put into the Constitution, or some president someday could just decide not to enforce its rulings. This isn’t a remote danger. Gingrich repeatedly said in the 2012 campaign that if he were in the White House, he would not feel compelled to always follow the Supreme Court’s decisions on constitutional questions. It wouldn’t be impeachable because that would be upholding the Constitution, so long as judicial review isn’t in there.

  8. Well, you can have a test case today with the decision rejecting Mr Obama’s recess appointments.

  9. I’m drinking a fresh cup of coffee after a large piece of pumpkin pie; the spice in the pie has completely killed the flavor of the coffee. Lesson learned.

  10. Craig ,
    Great piece.

    Both sides have politicized the court so badly that it is hard to see it representing anything like an impartial body.

    I does seem however, at least in my lifetime, that for conservatives at least the court has become the holy grail, and the thing that drives them to great lengths to gain and retain power in Washington. A chance to make conservative/reactionary policy and have said policy upheld by the highest court in the land.

    I think that the idea of an even number of justices is an excellent one.

    Congress should move quickly to make it eight, and then immediatly remove Scalia.

  11. Flatus,

    Try coffee with cheesecake.

    In CA with family, having my coffee outside on a beautiful morning, and blogging with friends all over the country.

    What a world we live in! Smile.

  12. As Wikipedia noted regarding the UK and the EU, there are arguments to be made for an against judicial review.

    Do you really want each of the three branches of the U.S. government to decide what is constitutional, and what is not?

    And what about the 50 states? Could they decide which federal laws are OK, and which are not?

    Could each individual citizen of the USA decide what he or she thinks the constitution means, and act accordingly?

  13. I do live in California but I think more people think like I do in the US then think like Scalia

  14. Halftime in US-Germany. Nil-Nil in rainy Recife. I would characterize the game as Germany being more aggressive, but, still, the play on both sides being tentative and lackluster.

  15. Rats. Germany won 1-0, but US makes it to knockout round. Portugal beat Ghana, but both those teams are out – Portugal on goal differential to the US. So we live to fight on … I hope Jozy is back for the next round.

  16. Craig.Crawford: mandatory retirement age a good thing. can’t imagine an 80-plus Scalia

    but ruth is 3 yrs older than antonin and at 81 she’s doing a good job. a heckuva better one than those young whippersnappers alito, thomas and roberts.

  17. interesting to consider when fussing about or blaming our german coach and our several german-american players for latent bias:
    according to wiki

    German Americans (German: Deutschamerikaner) are Americans who were either born in Germany or are of German ancestry. They comprise about 50 million people,[1] making them the largest ancestry group ahead of Irish Americans, African Americans and English Americans.[5] They comprise about 1⁄3 of the German diaspora in the world.

    whereas the population of germany was 82,282,988 per the 2010 census not all of whom were born in deutschland or are of german ancestry.

  18. another factoid of little worth dredged from wiki is about isis. no, not those Islamic militants but the goddess who

    was worshipped as the ideal mother and wife as well as the patroness of nature and magic. She was the friend of slaves, sinners, artisans and the downtrodden, but she also listened to the prayers of the wealthy, maidens, aristocrats and rulers.

    in all the coverage of the present isis ruckus, there’s not been one word of reference about the old lady or how very opposite her constituency from theirs.

  19. Craig,

    That was a clear and concise explanation of how C.J. John Marshall became the Father of the Court, and why Marbury v Madison is the most important decision the Supreme Court ever made.

    Without the rule of Stare Decisis, by which precedence or citation directs, or at the very least strongly influences, decisions, even Marbury might not have proved important. Stare Decisis comes down to us from English law, which took the essentials from Roman law, and who knows where the Romans got it – maybe it originated with the Carthaginians.

    In the 19th Century States Rights proponents quickly forgot that without Marbury the South could not have imposed its will on the North in the Dred Scott decision.

  20. Isis saves the day (the night, to be precise) in The Ass of Apuleis.

    That Isis was quite a gal.

  21. yep xrepublican, and it’s worth noting that Lincoln refused to enforce Scott ruling. The Emancipation Proclamation defied that decision. In that instance a president did a way better job than the Court to “preserve, protect and defend.”

  22. The Citizens United ruling is the Dred Scott of our times, a major threat to what’s left, if anything, of our Democracy. And Obama should just ignore it, enforce the limits on Super Pacs as written. What can the Court do about it? Send their cafeteria workers to arrest him? Time has come to strip them of powers they never deserved in the first place, if they choose to use those powers to subvert elections (Bush vs Gore) and empower the rich to hijack the country.

  23. There was a bear loose at Obama’s event here in St Paul ?

    During the rip ups convention here, they locked up people.

    For President Obama we let the bear out.

  24. Craig, You think Scalia’s liver will hold out until he’s in his 80s?

    Xrep, Lived your “Texas Trinity” post on the OT.

  25. I’m miffed at the Mexican govt. They built govt housing on a flood plain & it has flooded. A call went out for clothing, canned goods, etc. I spent last night gathering my things for the relief effort.
    Now we are told that the Mexican government only wants bottled water & cash. Yep. Pour more US dollars into their economy, because the money will have to be spent on good & clothing from Mexican merchants. It’s not like they will be able to replace their things with the little money we can give. It’s their government’s fault for building there in the first place & now they are just making it more difficult for the flood victims.

  26. Craig:

    When has Obama ever done anything as bold as what you suggest (ignoring the Supreme Court)?

    He avoids confrontation whenever possible, even to the detriment of whatever modest agenda he has.

  27. We have several Supreme Court members who are on the gwbush plane of awareness.

    A real shame but what is you gonna do?

    At least Colbert was able to give it to Scalia et alia in person. What a mensch.

  28. Impeach Obama?

    Speaking of constitutional issues, it’s looking more likely that the House will vote to impeach Obama at some point in the near future.

    The Tea Party extremists are demanding it.

  29. andrew jackson defied the Supreme Court, too. ‘Course he was a dirty, thieving, mass-murdering, racist.

    But then, nobody’s perfect.

  30. jackson might fit with the tee party folks if only

    1. he didn’t have military experience,

    2. they didn’t prefer john c. calhoun,

    3. he’d let the British burn down New Orleans,

    4. he’d change party.

  31. It has been an interesting week. Looks like we got those white folks all stirred up, lol
    Just over leadership training in Spanish. They were fine with a park until that popped up.
    Last week they were doing their best to give our childrens park away to a group that want to provide education to at risk young adults(read criminals) and today as we forged ahead they pulled their financing(we got a grant to pay for this but it is in their name)
    So old Jack has his dander up and is ready to kick ass and take names.

    Ya see I promised the kids in the neighborhood a party and by damn they are going to get one even if I pay for it all out of my own pocket.

    Further more it looks as if the grant is a goner too or at least that is what we told the group that is creating the training for us.

    Folks I’m pissed and ready to tear certain folks a new one. So I’ve never done this but I’m asking for your help. I’ve created a paypal button on the McCoy Friends y Amigos blog But it is not just the party$300. if we can raise another $500 I can hire a smart young intern I just met to help me organize the folks over there and we can take our case for a park directly to the parks department where we have a friend on the commission and to the city infrastructure funding commission where we also have a friend (she likes children!!!) Also if anybody has a spare $5000 laying around I can do 8 sessions of training for my Latino neighbors really drive the neighborhood association nuts.
    So any help is much appreciated or just pass the word to some one who can help.


  32. pogo, any tho’ts on the 3 bites and you’re out fifa decision?
    other than being an ocd vampire, only possible defense is to prove the bite-ee willfully jammed his shoulder into the biter’s mouth which was innocently open to breathe.
    btw, what do lp and his soccer peers think about all the faking injury dramas on the field?

  33. whskyjack,

    please assure us that this appeal account isn’t one of those mr. white ploys a la “breaking bad” to launder illicit booty.
    btw, what’s on the menu? hot dogs, tapas y sopapillas?

  34. patd,

    I think Suarez was appropriately sanctioned. Whether by Fifa or on the field (red card would have been more than appropriate IMHO) he would miss the knockout round game, so the effect on Uruguay’s WC hopes is likely the same). My question is whether Liverpool is forbidden from paying him during the suspension.

    Faking injuries? Great discusion on that on ESPN FC the other night. The “faking” (overacting?) following contact (or no contact at times) is because 60% of goals at the pro level are scored off set pieces – so a shot opportunity is very valuable from the perspective of its impact on the outcome of the game. It’s no different from flopping in the NBA in the last quarter of a close game. The difference is that when games are won by only 1 or 2 points, there’s no incentive to wait ’til the end of the game to try and draw the foul. The exaggeration of the injury (if there is one) is an attempt to draw a card on the other player rather than just get a foul called. In a perfect world it shouldn’t occur, but it’s not all that big of a deal – the refs see it all the time and do a fair job of being able to let the obvious fakes go and call the real fouls. Although I have seen many refs get it flat wrong at one time or another.

  35. To return to the subject of this thread, the British Library has put on display copies of the Declaration of Independence and the U.S. Constitution’s Bill of Rights.

    However, they are only part of a display on the the 1215 AD document from which they were both derived …
    the Magna Carta.

Comments are closed.