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Upon the retirement of Anthony Kennedy, some nerdy thoughts about the powers the Constitution actually gives the Supreme Court

REUTERS/Jonathan Ernst
Associate Supreme Court Justice Anthony Kennedy

In the aftermath of Supreme Court Justice Anthony Kennedy’s resignation announcement — and with apologies in advance for the nerdiness and quirkiness — I wanted to offer some thoughts on the Constitution, by a superannuated Constitution nerd with some admittedly quirky views: 

The U.S. Constitution functions as essentially the bible of the lay religion of Americanism. The Supreme Court functions essentially as a panel of high priests who are authorized to decide what the words in the Bible mean. Any meaning on which five of them can agree becomes the enforceable Law of the Land, without benefit of enactment by any of the elected branches.

And once these laws from the bench are created, they are virtually impervious to change, unless there is someday some turnover on the panel of high priests leading to a different result. When that happens, we sometimes say the Constitution “evolved.” But, other than by amendment (which basically never happens anymore and is fairly unimaginable under current polarized circumstances) how does an ink-on-parchment document “evolve?”

The other Marshall plan

This lay religion of Americanism, like other religions, relies more on faith than on facts and logic, or on truly applying the actual text of the sacred document.

In the wake of recent events, with conservatives already controlling the Supreme Court and likely strengthening that control when Kennedy is replaced by a more down-the-line conservative, my observations may come across as a liberal lament. But, historical, it was often a conservative lament about my liberal court triumphs.  Roe v. Wade, with its creation of a constitutional right to abortion — with a highly legislative-seeming treatment of the differences in the constitutional right of a woman to an abortion by trimester — was a case that sent conservatives to the moon over legislation from the bench.

The fabled Marbury v. Madison case, in which the Supreme Court first asserted its right to strike down laws, is actually a colossal pigsty of illogic and a successful power grab by then Chief Justice John Marshall, which I take to have been intentional on Marshall’s part.

If you read the Constitution, you will find no mention of the power of the Supreme Court to strike down laws enacted by Congress. It’s just not there. Marshall invented it, rather obviously, in the Marbury ruling, and he got away with it by, rather cleverly, making a ruling that didn’t require the other two branches of government to do anything, perhaps because he understood that they would have refused.

Am I a crazy radical on this question? If so, at least I’m in good company. Thomas Jefferson, a full-fledged Founding Father who was president at the time of the Marbury case when the court first asserted its power to strike down laws, wrote:

“The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” 

His own view was that, “Nothing in the Constitution has given [the judges] a right to decide for the Executive, more than to the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them.”

Later, in retirement in1819, Jefferson wrote that: “[T]he Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”

How about Abraham Lincoln, himself a lawyer and a probably the most admired figure in U.S. history? In his first inaugural address (1861), referring to the constitutional questions that were then tearing the republic asunder, Lincoln said:

 I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court. Nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government [by which Lincoln means the executive and legislative branches]…

At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

And that was 58 years after the Marbury ruling. Jefferson and Lincoln notwithstanding, Marshall seems to have won the argument.

The Constitution has still never been amended to specify that the court has the power to strike down congressional laws. (And such an amendment would, of course, make such a power constitutional.) But the idea of such a power is now taught in school as uncontroversial and part of the magical “balance of powers” across the branches of government. Someone making the argument I’m making risks sounding deranged.

The other thing that has happened more recently is that the vetting of potential court nominees focuses on how they can be expected to rule, although it’s all done sotto voce.

As recently as the Eisenhower and George H.W. Bush administrations, Supreme Court justices (I’m thinking of Earl Warren and William Brennan, by Eisenhower and David Souter by Bush) turned out to be ideological surprises. Nowadays, the vetting is much more thorough, and by “vetting” I don’t mean as to the character and intelligence of the candidates, but as to how they will rule. President Trump has committed himself to choosing from a list of potential nominees that has been vetted by the very conservative Federalist Society. The new system greatly reduces that a court appointee will disappoint those who put him on the bench.

Those Federalists know a real conservative when they see one. If Trump appoints from their approved list, it’s likely that certain views – which might be considered more political and ideological, even partisan, than juridical – are locked in on the court for a life term.

If I’m right about the above, it would be pretty hard to trace this back to anything that could be called the original intentions of the Framers of the Constitution. They created the federal judiciary and the Supreme Court in Article Three. They could have written that among the powers of the court would be the power to nullify any federal laws that exceed the power granted to the Congress to legislate, or that violate the Constitution in any way. Here’s the text of Article III. It’s quite short. Read it for yourself and see if you find where the Framers gave the Supremes the power to strike down or modify laws passed and signed into law by the elected branches.

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Comments (19)

  1. Submitted by Steve Titterud on 06/29/2018 - 09:21 am.

    Eisenhower famously regretted appointing

    “that dumb son of a bitch Earl Warren.”

    Lifetime appointments offer the appointee a clear opportunity for a greater or lesser break from the past. Those with a flexible intellect may take advantage of this opportunity, no matter what our expectations about how they will rule in actual cases.

  2. Submitted by RB Holbrook on 06/29/2018 - 09:42 am.

    Not Exactly

    Stop me if I’ve mentioned it before, but judicial review was not an invention of Chief Justice Marshall. The practice had been well-established before the Constitution was adopted. State courts had been invalidating statutes since 1780, sometimes relying on an unwritten constitution.

    Marbury is significant because it was the first time the US Supreme Court struck down an act of Congress as unconstitutional. That is certainly an important development, but it was the kind of development that is the logical conclusion of a historical trend. The holding was controversial, but it was nothing new.

    Dean William Treanor published an interesting (albeit lengthy) article on this subject in the Stanford Law Review back in 2005:

  3. Submitted by Jon Kingstad on 06/29/2018 - 09:48 am.

    Federalist Society and “Originalism”

    For all the talk about “originalism”, the Federalist Society and their icons on the present Supreme Court have very little scruple about ignoring it when it suits their purposes. They complain about Marshall’s decision in Marbury v. Madison but then when it comes to amending the Constitution, which is expressly laid out in the Constitution, they sing a different tune. Here’s “originalist”
    Sam Alito in Janus discussing his decision (with 4 “originalist” colleagues) their decision to overrule the Court’s 1977 decision in Abood:

    “Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.. . . We will not overturn a past decision unless there are strong grounds for doing so. . . . But as we have often recognized, stare decisis is “‘not an inexorable command.'” . . . The doctrine “is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.”

    So, there it is. The most “originalist” justices reserve the right to amend the Constitution precisely because, in their view, it’s virtually impossible to amend the Constitution by any other means. Yet they’re happy to impose their straightjacketed view of the Constitution on everyone who disagrees with them by denying that the Constitution can “evolve” by legislative or executive actions which require the meaning of the words of the Constitution to meet the needs and exigencies of a changing world.

  4. Submitted by Hiram Foster on 06/29/2018 - 01:46 pm.

    Originalism reminds me a lot of how so many religious people say they were created in God’s image, when it’s much more the case that they have created a God in their image. Somehow the Originalists always come down on the side that accepts their pre-existing views. Funny how that works.

    • Submitted by Paul Udstrand on 07/03/2018 - 10:48 am.


      Originalism is intellectual fraud. It’s completely incoherent to claim that anyone has access to the thought processes of anyone who cannot be interviewed (i.e. dead people). Originalism not claims such access multiple minds (that don’t exist anymore) but also claims to be able to divine a consensus that such multiple minds would arrive at were they to consider issues and problems they could not imagine when they did exist.

      In a legal venue where I cannot testify as to what my wife was THINKING… about ANYTHING… these guys make law based on a claim that they know what dead men WOULD think if you could ask them. Such claims don’t withstand even a cursory critical examination yet we’ve put these frauds on the bench.

  5. Submitted by Hiram Foster on 06/29/2018 - 03:47 pm.

    Lifetime appointments

    There are lots of things wrong with lifetime appointments and one of them is that it diminishes the quality of justices available to serve on the court.
    The Supreme Court is a job for lazy people. The hours are short, and the vacations are long. The bulk of the work is done by interns. In case anyone hasn’t notice, for decades now we have been treated to a long line of justices whose resumes are far more distinguished than their careers.

    The job is the most boring in the world and the deleterious affect of the boredom shows all too much. Unwilling as they are to content themselves with the day to day minutiae of the typical judges life, after a few years or months on the bench they feel the compulsion to become super legislators, all the more arrogant in their abilities because they never actually have to account for their actions and behaviors to the voters.

    Here’s a modest proposal. Let’s limit judicial terms of office to six months. If we do that, I guarantee, you that unlike under the present system, the most distinguished lawyer and judges will literally line up for the job to the benefit of us all.

  6. Submitted by Nathan West on 06/29/2018 - 04:15 pm.

    That was a great article!

    I worry that an active court could effectively overrule legislation with which it disagrees. I worry especially about curbing the role of money in politics, which could potentially go unmitigated for many years to come even if legislation was passed.
    Also, unmentioned recently has been the fact that a president who lost the popular vote will now get to impose his values on America for 20-40 years. Sad!

  7. Submitted by Hiram Foster on 06/30/2018 - 06:26 am.

    I worry that an active court

    “I worry that an active court could effectively overrule legislation with which it disagrees.”

    I do too. And I admit, the charges of hypocrisy that are directed toward me on these issues have substance. For most of my life, I accepted the conventional view, which is basically, that judicial supremacy if ok if it’s accompanied by judicial restraint. But I have to say, that view for me is under stress. Bush v. Gore was big for me. It was a groundless intervention into state law to choose a minority president who proved to be a disaster of historical dimensions. In a small way CJ Roberts’s testimony about how judges were umpires, combining as it did a total misunderstanding of what both umpires and judges do, was a real problem for me. The final straw was the active legislating the court did on health care, with their bizarre claim that people who lived in an era when barbers performed brain surgery as a sideline had something to tell us about 21st century health care policy.

    For me, the string has run out. The court has abused it’s trust in ways that are beyond redemption and beyond repair. The idealism of the founder and of the early years of the court has been definitively betrayed. It was a nice idea, but it didn’t work. To quote Lord Acton, “Power corrupts, and absolute power corrupts absolutely. Sometimes it just takes a while.”

  8. Submitted by Hiram Foster on 07/01/2018 - 12:43 pm.

    Originalism is a doctrine that seems old, but is in fact quite recent. Like many fiercely argued doctrines it flies in the face of the obvious and what we would naturally believe. To show this, I propose a thought experiment.

    Think of yourself as a founding father or mother charged with crafting a document determining how people would be governed two hundred years in the future.Would you make it about policy? What about health care? Do you know what health care will be like two hundred years in the future? Do you know how it will be paid for? On these and a variety of other important issues, how comfortable are you in imposing your views on your remote descendants. If you are that comfortable, you have the makings of a constitutional origianlist.

    • Submitted by Neal Rovick on 07/02/2018 - 11:45 am.

      Yes, if the “founding fathers” were such originalists, wouldn’t we have a king and parliament instead ? And if things are immutable, what would the need be for the law-making of a Congress or parliament? Just a set of stone tablets would suffice.

      These guys were the “connected” people of their generation–aware of the social and technological upheavals sweeping Europe–change was in their blood.

    • Submitted by Paul Udstrand on 07/04/2018 - 05:01 pm.

      I actually blame Democrats

      Back in the 80’s conservative judges declared that the Second Amendment arguments Originalists were making were fraud. Despite the obvious fact that Republicans were pursuing a transparent and public strategy of loading the courts with disingenuous frauds, the Democratic response was: “Meh”. They could have blocked Thomas, Alito, and Roberts. They could have exposed Originalism for the garbage that it is. But the nature of centrism is to accommodate rather than confront so they pretended that Originalist fraud was legitimate intellectual and judicial work. Then they started losing elections and chances to appoint judges and here we are.

      Just a few years ago Joe Biden made the statement that he didn’t used to think ideology was a legitimate consideration when confirming judges. Really Joe? You just figured that out?

  9. Submitted by Hiram Foster on 07/02/2018 - 12:24 pm.

    Yes, if the “founding fathers” were such originalists, wouldn’t we have a king and parliament instead ?

    We revere the founders a lot and some of it is justified but it’s important to remember that the document they created accepted the existence of slavery. And their inability to deal with the issue of slavery set in motion a pretty direct series of events the worst war in American history, which itself resulted in a substantial revision of the document.

    And by the way, the Constitution has been amended 27 times over a period in excess of two hundred years. Just whose original intent are we talking about?

  10. Submitted by Dave Fisher on 07/03/2018 - 09:47 am.

    Marbury vs. Madison

    The Supreme Court, and John Marshall, did not even have jurisdiction in Marbury vs. Madison. Marbury sued directly in the Supreme Court to require Jefferson to issue a commission for a judgeship to which Marbury had been appointed. He did not go through the lower courts. The Supreme Court, as an court of appeals, should have ordered the case to district court. Rather, Marshall saw an opportunity to affirm his belief in the strength of the Federal (vs state) form of government. And, Marbury never did get his commission.

    • Submitted by RB Holbrook on 07/03/2018 - 11:20 am.

      Not Exactly

      “The Supreme Court, and John Marshall, did not even have jurisdiction in Marbury vs. Madison.” Marshall agreed with your point. Marbury’s suit was based on the Judiciary Act of 1789, which gave the Supreme Court jurisdiction to issue writs of mandamus to public officials. Marshall concluded that this violated the limitations on the Supreme Court’s original jurisdiction set out in Article III of the Constitution. The Judiciary Act was therefore unconstitutional.

      “The Supreme Court, as an court of appeals, should have ordered the case to district court.” There was no case on appeal. Marbury’s suit was a nullity, since the Court did not have the jurisdiction to hear it. There was nothing to send back to the District Court.

      True, Marbury did not receive his commission. Jefferson won the case, but lost the larger battle.

  11. Submitted by Paul Udstrand on 07/03/2018 - 10:58 am.

    I wonder if our concerns should be a little more immediate

    I wonder why we’re not talking about the fact that Kennedy has resigned prior to the midterms at the behest of Donald Trumps staff? Given the legal swamp Trump has created isn’t it at least unseemly that Kennedy would give Trump the chance to put a select replacement on the bench before the mid-terms? Why would he do that? He doesn’t live in a bunker beyond reach of his family, he couldn’t wait 4 months? What kinds of “promises” did Trump’s staff make? And would an intelligent man like Kennedy put any stock in any promises made by Trump staff?

    And then there’s the report regarding Kennedy’s son who’s been Trump’s banker at Deutsche Bank for a decade or more. One of the issues that’s bound to come to court in the next few years is money laundering and other issues regarding Trump finances, so Trump gets to decide who will sit on the bench when his cases get to the court? Are we to believe that Kennedy is oblivious to these facts?

    • Submitted by RB Holbrook on 07/03/2018 - 03:30 pm.

      It’s Not Personal, It’s Strictly Business

      If any matter regarding the investigation into Deutsche Bank and its Trump connections were to reach the Supreme Court, Justice Kennedy would have to recuse himself. The probable vote would be a 4-4 split, leaving the bank’s and Kennedy Jr’s fate in the hands of a Circuit Court of Appeals (likely the Second Circuit). A Trump fan on the Court would more than give a kindly vote towards one of the in-crowd.

      • Submitted by Paul Udstrand on 07/04/2018 - 08:48 am.

        A 4-4 split is better for Trump

        A 4-4 split is better than a 5-4 decision against him. And the Deutsche Bank case is ONLY one Kennedy would have to recuse himself. Since there are many other cases in the hopper Kennedy is giving Trump a gift that will keep on giving for years and decades. I don’t know how “personal” it is, but it’s undeniably obvious.

        • Submitted by RB Holbrook on 07/05/2018 - 01:23 pm.

          4-4 vs. 5-4

          “A 4-4 split is better than a 5-4 decision against him.” A 4-4 split would have the effect of affirming the lower court’s judgment. Could Trump be that sanguine about the chances of a case regarding a full investigation into his conduct, even if he knew what “sanguine” meant?

          • Submitted by Paul Udstrand on 07/05/2018 - 03:31 pm.


            Let me look up: “Sanguine” and get back to you. But again, the 4-4 split would only apply to the one possible case that Kennedy would recuse himself. Now Trump stands a good chance of getting 5-4 decisions in his favor on many possible cases, including the one Kennedy would have had to recuse. Look, the White House wanted Kennedy to resign for a reason… yes? Why are people suggesting it makes no difference?

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