Is there no limit to the power of the Supreme Court to enact law from the bench? Does the Constitution simply mean what the Supreme Court says it means?
Consider an extreme and unlikely example, but nonetheless illustrative: Suppose the Supremes were to rule (five to four, of course), that “The United States is a Christian nation,” and that henceforth, only confessing Christians could hold public office. Such a ruling would, of course, directly contradict Article Six and the First Amendment to the Constitution. But such considerations have not constrained this Supreme Court or its predecessor. The Constitution also stipulates that the states are to determine the electors in a presidential election. (Article 2, Section 1) In Bush v. Gore, the Supremes ignored that when they brushed aside the Florida Supreme Court’s ruling that a statewide recount of the vote must continue. The same court in the same decision, set aside the rule of stare decisis (precedent) when it wrote that “Our consideration is limited to the present circumstances.”
The Roberts Court has found no occasion to restore habeas corpus or to reaffirm the Fourth Amendment prohibition of search and seizure, both of which are required by the Constitution, and both of which are openly violated by the Military Commission Act and by Bush’s admitted defiance of FISA. And just last month, in Hein v. Freedom from Religion Foundation, the Roberts Court moved half the distance toward an establishment of religion, when it allowed federal tax revenues to be distributed to religious agencies selected by the Bush’s White House.
Suppose further that in 2008 a Democratic President and an overwhelmingly Democratic Congress is elected. The Congress then proceeds to enact, and the President to sign, legislation depriving corporations of “personhood” status, instituting single-payer medical coverage, reforming campaign finance, etc. – in short, repealing the abuses of the Bush regime and the GOP Congress and instituting progressive reforms. And then, one by one, all these are voided by the Supreme Court, with rulings that are flimsy at best, and more often plainly absurd, and none of them open to appeal. In short: a nullification by one branch of government of the remaining two branches.
The Constitution of the United States provides checks and balances, to prevent unwarranted exercise of power by branches of the federal government. The Congress is restrained by the President’s veto power, and the President is kept in check by the Congressional option of impeachment and removal from office. Both the executive and the legislative branches are constrained by Supreme Court’s “judicial review” of enacted laws and executive orders. (“Judicial review,” however, is not specified in the Constitution. It was established in 1803 in the landmark case,Marbury v. Madison).
While specifying “checks and balances” against the President and the Congress, the framers of the Constitution failed to likewise constrain the powers of the Supreme Court, other than to allow impeachment if the judges failed to “hold their offices during good behavior,” a vexing and vague condition, to say the least. (Article 3, Section 1). All federal officers take an oath to “support the Constitution” (Article 6). But that requirement raises a troubling paradox: How is the Court, or a Justice of the Court, or a ruling of the Court, to be judged to violate the Constitution, when the Court itself is the final interpreter of the Constitution?
Apparently the framers couldn’t imagine a time when the Supreme Court itself might become an outlaw, and thus they provided us with no remedy.
Such a time is upon us now, soon to be followed by a desperate search for a remedy.