Like a lot of political junkies, I spent the waning days of this term of the Supreme Court keeping close watch and tallying the score. Hooray for the First Amendment. Too bad, Fifth Amendment fans. It's a toss-up for the Second Amendment.
Then, as the the term ended, it finally occurred to me that I was writing about the decisions as if they were the most natural thing in the world. Whether I agreed with the decisions or not, I was reporting on them as an accepted and normal part of the governing landscape.
Which made me realize that's it time for one of my periodic episodes of whining and moaning about the fact that nine unelected people, who serve for life, have so much control over every aspect of our daily lives. How did such a thing come to pass in this supposedly constitutional republic "of the people, for the people and by the people"?
Consider the decision in Pavan v. Smith, in which the court ruled that same-sex married parents can be listed as mother and father on a baby's birth certificate even though one of them is not a biological parent. The ruling shows how serious the court is about reinforcing its 2015 decision in Obergefell v. Hodges in which the court legalized gay marriage across the country.
As a practical matter, it means that the argument over gay marriage is finished. It's legal. Period. Deal with it.
Think about that. Whichever side of the gay marriage debate we fall on, most of us recognized that it is one of profound significance, touching on everything from traditional values and religious beliefs to federalism and states' rights. Surely something so momentous should be subject to the will of the people through the legislative process. But now it has been decided for all time.
And not by nine people, either. My real complaint should be that so much of our lives can be controlled by five unelected people who serve for life. The court has agreed next term to hear a case involving the religious baker who refused to bake a cake for a same-sex wedding. So five people (and I'm pretty sure it will be only five) will dictate to the entire country what their deeply held religious beliefs will or will not allow them to do.
One of those five will surely be Anthony Kennedy, the "swing vote" justice who irritated the hell out of his opponents by floating rumors he would retire and then stayed silent as the term ended. He is usually the deciding vote in the most highly controversial cases that end up in a 4-4 tie between the court's liberals and conservatives. That means he gets up every day knowing that on the most important issues of the day, he and he alone gets to dictate to the whole country.
That sort of makes him the most powerful person in the world, doesn't it? Who the hell would retire from that?
Back to the original question: How did the court get such power? A lot of commentators will point to the upheavals of the 1960s and the sudden urge of various people in power to pass the buck on making a decision. Many will point the finger at a Congress unable or unwilling to do its job, If the Supreme Court justices decided to become a super legislator, they were only filling a vacuum.
But the truth is that the court has that power because it simply took it, when it decided, in the infamous Marbury vs. Madison case, that it should have the ultimate authority to decide on the constitutionality of laws.
The Court seized this power from Congress, the President, and the States. Article VI of the constitution states that “this Constitution and the Laws of the United States which shall be made in Pursuance thereof, shall be the law of the land.” Thus, the lawmakers are required to make Constitutional Laws and any law made, is by definition “constitutional” unless the President believes it is unconstitutional or the States beleive it is unconstitutional. In either case, Congress is impotent because they are the only entity at the party without guns. More on the power struggle later.
Consequently, with the decision in Marbury v. Madison the concept of “Judicial Review” was born. Judicial Review was later solidified in American politics by Cooper v. Aaron never to be challenged in any real manner again.
As we move forward with this series, the key question to understanding the balance of power in Washington is this, “Who decides?” It is the person or persons that decide who have power. Clearly, as it relates to constitutionality of laws, the United States Supreme Court now decides.
The court, as envisioned by the Founders and written into the Constitution, was a much weaker institution. But now, thanks to its own initiative and inaction by Congress, it is the most powerful institution in the land.
So let this be a lesson. It's far, far too late for Congress to take it to heart, but it's something the rest of us should certainly ponder: If you don't do your job, somebody else certainly will. And you likely won't like how they do it very much.