The Role of the Supreme Court

[This was written as a response to a comment on the “Interesting Argument” thread. However, both Janet and I feel it has enough of it's own content that it should be posted as a separate entry in its own right. It is in response to one participant's claim that only elected officials should determine laws, that the responsibility is not, and should not be, in the hands of unelected Supreme Court Justices. --Liam]

And see, my disagreement with that is that I think that's in part EXACTLY what the Supreme Court is about, to be a check and balance against the elected officials, who may do things contrary to the founding principles of this nation in support of their constituencies, since they face the prospect of losing a reelection bid.

The role of the Supreme Court is exactly in being one more check and balance in the system.

Here's how it all is supposed to play out.

Congress passes a law. Both houses have to pass a version of it, they then resolve a combined version and send it to the President. That's the first check/balance, a majority of two houses of Congress must agree.

Next, the President can either sign or veto the bill. That's the next check and balance, the executive branch must agree with the bill.

If he vetoes, then the Congress can override the veto with a two-thirds majority vote, a check on extreme power by (essentially) one man, but only if a significant majority agrees that the President is wrong. Third check/balance.

People who disagree with the bill, or who feel they are unfairly harmed or targeted by it file suit against it, ultimately (perhaps) making their way up to the Supreme Court, who is tasked with weighing every case brought before them primarily against the Constitution and their interpretation of the intent of the Founders in writing that document. The Justices, appointed and not subject to reelection concerns, are free to rule in the way they believe the Constitution intends, without having to be concerned that the decision may be unpopular. They can do what they perceive as right under the Constitution, even if it would be an unpopular decision. Fourth check/balance.

Finally, if the Congress STILL feels that the law is correct, they can override even THAT, but only by Constitutional amendment, a process which requires a 2/3 majority of both houses of Congress *AND* ratification by 3/4s of the states, meaning that a simple majority in at least 75% of the legislatures of the states must agree that this is a valid and worth change to the Constitution. This is the final check/balance.

Each check and balance gets a little bit harder to accomplish, to avoid any one branch of government having too much power in the system, but all but the last can be overridden by somebody, with sufficient support. In the end, Constitutional Amendment is made so difficult to accomplish that the assumption is that it would not pass unless it truly was the overwhelming majority of opinion in the nation. Note, by the way, that the checks are almost all based on PREVENTING bad laws, not on giving second chances to good laws, and this also supports the contention that laws are enacted to restrict rights which (enumerated or not) are guaranteed by the Constitution unless revoked by due process. The three primary checks (Congressional concurrence, Presidential veto and Supreme Court review) are in place to prevent unfair, unjust or unconstitutional laws from being passed. The other two are secondary checks aimed at placing a balance on the first three checks.

So, understood this way, there is nothing wrong with the courts (and the Supreme Court) passing judgment on laws and overturning them. Far from being "judicial activism", it is in fact their JOB. And if the vast majority of the nation disagrees with their estimation, that law can still be passed by Amending the Constitution.

I will say, however, that we should all be VERY careful before Amending any part of the Constitution in ways that fundamental change the balance of power in the government. Like it or not, these five increasingly difficult steps of checks and balances are fundamental to making sure that we don't end up with laws that are fundamentally anti-American. Certainly, in a fit of fear after the events of 9/11 or the recent attacks in London, it would be possible to frighten the populace into passing an Amendment reducing the courts' power in the process, but in fact that's a very bad choice, just like the "nuclear option" described by Bill Frist is a bad choice for America. It circumvents the right and proper series of steps designed to ensure that majority rules but with significant chances for the minority to dissent.

Yes, maybe it makes the job harder to accomplish, but that's the point. If the job they're trying to accomplish is that worthy, it's worth doing the hard way. If it can't be accomplished the hard way, then it is (in my opinion) wrong to diddle with the fundamental balance of powers in order to accomplish it. Again, all based on protection against unreasonable restriction on basic freedoms.

And that's also why the Congressional “advise and consent” role is so crucial. Because those Justices are free from having to do what is popular, it is important that they be honorable people who will do what is RIGHT, who will interpret the Constitution as it was intended, and preferably as the Founders would interpret it, if they were alive today. Traditionally, extremist judges were not even nominated to the post, because both parties of Congress took their “advise and consent” role seriously and would vote down extremists who would vote partisanship over correct interpretation. In recent years, this role has been replaced by a feeling of “Hey, the President is from our party, if it's good enough for him, it's good enough for us.”

The notion of a Supreme Court Justice who does not fundamentally support the freedoms guaranteed in our Constitution, or would read it in ways clearly not intended by the Founders (as expressed both in the Constitution and in the Federalist papers) should be frightening to anyone. We're a free nation. Does that not count for anything any more? Are people really so partisan that they'd give up the core greatness of our nation in favor of Justices who would flout the very core of the Constitution for partisan ends?

And if so, is this REALLY a country I want to continue living in?

Copyright © July 22, 2005 by Liam Johnson. http://www.liamjohnson.net