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2012 Election

Supreme Irony II


Common Sense considered the possible implications of the Supreme Court’s hearing of Florida vs. USDHHS in this article. The political ramifications are still unclear, though it is certain to add bitterness and divisiveness to an already confrontational election year. What this case also brings into stark relief is that the ideological divide also affects the Court.

The Supreme Court is the most respected and trusted of the three branches of government, with Congress a long and dismal third in both categories. Most people don’t think about the Court at all; it quietly goes about its business and almost always operates as it is intended to, impartially. And yet, now and again, there are cases that shine an unflattering light on the Court, on its power and on its Justices.

The Omnipotent Court

In many ways, the Supreme Court is the most powerful branch of government. Congress is renewed every two years and the President can veto legislation. The Executive serves a maximum of eight years, cannot legislate and its vetoes can be overturned by Congress. Yet a Supreme Court Justice sits for life, cannot be removed except for gross misconduct and the decisions of this tribunal are final and unappealable. A Supreme Court decision can only be overturned in two ways:

  • By a Constitutional amendment; or,
  • By a later Court decision (which they are usually loath to do and even then the earlier decision remains a valid interpretation in the case law to go back to).

This was not the original intention of the Founders. The men who wrote the Constitution intended Congress to be the supreme organ of government. Furthermore, there is nothing about judicial review of Congressional laws in the Constitution. It was not established until 1803 in Marbury vs. Madison, when Chief Justice John Marshal interpreted the Constitution as granting the power of judicial review and went on to apply it in this case. It has held that power ever since.(1)

This has happened before with the other two branches of government, of course. There are no term limits established in the Constitution for the Presidency, but force of tradition dating back to George Washington imposed a moral obligation on office holders to not seek more than two terms in office. That was until Franklin Roosevelt broke the tradition – there was nothing to stop him – and Republicans in Congress responded by passing the XXIInd Amendment, establishing our current system of a maximum of two terms for the President.(2)

So when Congress or the Executive overreach the bounds of their Constitutional authority, there are good, workable checks and balances in place to keep them in line. And of course, the Supreme Court is a vital part of that. But who balances the Court when it steps out of line?

No one.

Doozies and Humdingers

What exactly do I mean by “stepping out of line” for the Supreme Court. The role of the Court is to interpret the Constitution and to determine whether the laws passed by Congress and the decisions reached by the lower courts are in accord with it. How “strict” this interpretation is remains a topic of vociferous debate. The Supreme Court is not supposed to judge a law based on any social, economic or political merits – that is the prerogative of Congress – only on its strict adherence to Constitutional powers and limitations. When the Court’s interpretation of our founding charter strays from this limitation, and begins to look more like proactive policy, then we have what is called “judicial activism”.

Of course, the Court will never admit to overstepping these limitations, not in public. But there have been cases that have stretched the credulity of public claims to impartiality, and some have been real humdingers:

  • Dredd Scott vs. Sandford (1857). The case that was supposed to prevent the Civil War, but in fact drove home the final nail on the coffin of the Old Republic. Chief Justice Taney ruled that Negroes were not people and therefore had no rights, including the right to bring suit in a court of law. Where this was found in the Constitution remains a mystery. To add insult to injury, the Chief Justice ruled that the whole series of Congressional compromises designed to geographically limit slavery within the territories were unconstitutional because Congress did not have that authority expressly granted to it. That set a fox in the henhouse and ensured the outbreak of war within three years.
  • Roe vs. Wade (1973). The case that some say started the culture war in earnest. Critics argue that the Court should never have heard the case since it was both “moot”; i.e. Roe had already had her child and could not have been affected by the decision, as well as “without standing”; i.e. Roe had no legal right to represent other women.  The Court nevertheless ruled that Congressional and state prohibitions of abortion were an infringement of the physician’s right to practice medicine freely as well as the woman’s right to privacy under the IXth Amendment. The Court totally side-stepped the issue of the countervailing right of the fetus to life, to due process, and to the protection of the law – which Congress and the states could legislate on – by claiming that determining the viability of the fetus was both “arbitrary” and  “beyond the Court’s competence”. Common Sense calls that a cop out.
  • Bush vs. Gore (2000). In the contested election, the Supreme Court decided to overrule the Florida State Supreme Court on a matter of state law and precedence, itself a highly unusual procedure. Members of the Court who potentially had a conflict of interest did not recluse themselves from the case, another irregularity. (3) Chief Justice Rehnquist, with Justices Scalia and Thomas concurring, wrote that this was such an unusual and unprecedented occurrence that it should set no precedent, another highly unusual statement for the Court to make. Critics of the decision have noted that only the Republican appointed Justices voted in favor of ending the recount measures.
  • Citizens United vs. FEC (2010). The Court ruled that Congressional limitations on campaign contributions and electoral spending by individuals, corporations and other entities were a violation of the First Amendment’s protection of free speech. The Court in effect ruled that corporations are people and have the same Constitutional protections, which goes against more than 100 years of case law that narrowly defined the “personhood” of corporations and permitted Congressional legislation of the same. Furthermore, you will not find the word “company” or “corporation” mentioned a single time in the Constitution, the Bill of Rights, or any of the later Amendments. This ruling will bring no end of mischief to the American political system.

Where does it end? The process of amending the Constitution is justifiably onerous. The process of getting the Court to reverse itself is not only time consuming, since the Justices have to die or retire first, but also uncertain at best. Justice Kennedy is not the first to demonstrate himself to be “open minded” across the conservative-progressive spectrum. That makes it very tough to limit the power and scope of judicial activism. This is a major flaw in our system of checks and balances.

Practical Considerations

Florida vs. USDHHS promises to be another divisive case, though perhaps not on the scale of the four I mentioned. As I said, it will inflame the passions of the base in both camps during the election. It will also demonstrate to voters how much is at stake in their choice of President and Congress.


The Court today is finely balanced between 5 conservative and 4 progressive Justices. President Obama has already appointed two of those progressives, Justice Sotomayor and Justice Kagan.  On Election Day, November 7th 2012, Justices Scalia, Kennedy, Ginsburg and Breyer will be 74 years old or older.

That means two conservative and two progressive Justices may very well be in play during the next Administration.

  • If President Obama is reelected, Justices Ginsburg and Breyer could retire without fear of upsetting the balance of the Court. Furthermore, if either Justice Scalia or Kennedy wished to retire or passed away (God forbid), then the President could tip the balance of the Court;
  • Naturally, the same holds true in the opposite sense for a Romney Administration.

The stakes are very high. Americans may be voting this year for the character of the Supreme Court over the next decade. President Obama and the Democrats will point to the Court’s decision in June to underline the importance of this fact to their base. It would be ironic indeed if a conservative victory in the Court case was responsible for establishing a progressive majority on that same Court in the next Administration.

 Sources and Notes:

(1) Judicial review was not a concept original to Marshall. Alexander Hamilton described this role of the Court in Federalist No. 78; state courts had exercised judicial review over state statutes before and after the Constitutional Convention; and the Supreme Court itself had exercised this function in Hylton vs. United States in 1796, but found for the defendant. It is nevertheless true that the Constitution does not explicitly mention the power of judicial review as one pertaining to the Supreme Court.
(2) The XXIInd Amendment was not actually ratified until 1947, well after FDR was dead, but it was drafted with him in mind. The Amendment specifically prohibits being elected twice, so Lyndon Johnson could have served more than eight years if he had been reelected (1963 to 1964 – JFK’s remaining 14 months + 1964 to 1968 + a hypothetical 1968 to 1972).
(3) “On the eve of the election Sandra Day O’Connor had made a public statement that a Gore victory would be a personal disaster for her. Clarence Thomas’ wife was so intimately involved in the Bush campaign that she was helping to draw up a list of Bush appointees more or less at the same time as her husband was adjudicating on whether the same man would become the next President. Finally, Antonin Scalia’s son was working for the firm appointed by Bush to argue his case before the Supreme Court, the head of which was subsequently appointed as Solictor-General.” Steven Foster, The Judiciary, Civil Liberties and Human Rights, Edinburgh University Press, ISBN 0-7486-2262-4, p.80

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John Adams


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