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

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. 

Associate Supreme Court Justice Anthony Kennedy
REUTERS/Jonathan Ernst

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.

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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]…

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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.