That Eminent Tribunal,” or How One Branch Overthrew Two

Every fourth day of July, Americans from Boise to Boston to Birmingham gather to celebrate our Declaration of Independence from Great Britain, so that our citizens could be relieved of a monarchical despotism and delivered to blessed oligarchy. We refused to be ruled by a king and parliament, and demanded that our sovereign be a handful of robed, unelected, unaccountable judges on the Potomac River, who alone would issue binding edicts on all State citizens and the hundreds of millions of people who would one day inhabit our republic, regardless of the wishes of the majority of those citizens, and regardless of the laws enacted by the legislative branch or the policies of the executive branch. After the blood of patriots had won our independence, the Framers would inscribe “Judicial Review” into our Constitution right beside the “Wall of Separation Between Church and State” and “The Right to Homosexual Marriage.” God Bless America!

While that is nonsense, what cannot be denied is that judicial supremacy and judicial dictatorship is the de facto method of government in the United States today.

In July 2018, President Donald Trump nominated Brett Kavanaugh for the vacancy on the Supreme Court caused by the retirement of Anthony Kennedy. Passions rose and sides were taken as the Senate Judiciary Committee met for confirmation hearings. Unquestionably, these hearings on Supreme Court nominees arouse much more attention than they did in previous centuries. Why is that?

Civics classes are often instructed that the three branches of the general government are supposed to be “equal.” But is this so? From where does this idea come? This language of the equality of the branches is nowhere in the Constitution itself. As a matter of fact, for a long time after ratification the common notion regarding which branch of the national government was to be primary favored the legislative.

It is Congress to which the very first article of the Constitution pertains. The greater and more numerous powers are vested in the legislature. The first article states that Congress is to be the sole source of all laws (except for clauses of the Constitution itself). Yet, today, when the Supreme Court issues an “opinion,” it is widely declared and held that the justices’ opinion becomes the settled “law of the land.”

Note that all civil officers of both the executive and judicial branches are subject to congressional oversight, impeachment, conviction, and removal from office. Yet, the executive and judicial are not vested with any oversight of the behavior of congressmen — they police themselves. (“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”)

Consider the fact that the Constitution mandates that the president must receive the “consent” of the Senate for not only his judicial nominations, but for his nominations for members of his own branch! The Supreme Court has no power of removal of executive or legislative members. International treaties become effective only when approved by the Senate.

When a vacancy occurred on the Court in the spring of 1866, Congress elected to eliminate the seat rather than allow President Andrew Johnson to choose a nominee for their consideration. To further flex their muscle (and to demonstrate their disdain for Johnson), Congress stipulated in the legislation that the Court would be reduced to only seven justices when the next vacancy occurred so as to ensure that Johnson would never get the opportunity to appoint a judge to the Supreme Court. 

In July 1937, the Senate overwhelmingly struck down FDR’s plan to increase the number of justices, again demonstrating which branch truly possessed and exercised authority over the others.

The legislative branch consists of representatives who are elected (unlike judges) and, are therefore, in theory, more accountable to the people. The House of Representatives is closest to the people, the Constitution mandating that members must stand for reelection every two years. Judges are appointed by the executive and approved by the legislature, or they do not serve. Executives and legislators are chosen by “the people” – the same “people” of the States whom the preamble describes as having ordained and established the “supreme law of the land,” which, despite modern misconceptions, is the Constitution – and not the Supreme Court.

Alexander Hamilton, in Federalist #78, wrote that the judiciary was the “least dangerous” of the three branches. “The judiciary…has no influence over either the sword or the purse; no direction either of the strength or the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment; and must ultimately depend upon the aid of the executive arm for the efficacy of its judgments.” He concluded that “incontestably…the judiciary is beyond comparison the weakest of the three departments of power.”

Yet, a mere fourteen years after the Constitution went into effect, the Supreme Court stood this theory on its head with its Marbury v. Madison opinion whereby the robed ones granted themselves the power of “judicial review” of all laws enacted by Congress. This review is taken for granted by almost all politicians, judges, and citizens today, although it was denied by the vast majority of the Republican (Jeffersonian) party at the time, legal scholars and historians, and, chronologically, chief executives Thomas Jefferson, James Madison, Andrew Jackson, Abraham Lincoln, Theodore Roosevelt, and Franklin Roosevelt. In his 1884 work, Congressional Government, future president Woodrow Wilson observed that “the actual form of our present government is…a scheme of congressional supremacy.”

In 1857, the Supreme Court heard the case Dred Scott v. John F.A. Sandford. Instead of simply ruling against Scott’s claim for freedom, the Court took the additionally bold step of declaring an act of Congress unconstitutional. The act, popularly known as the Missouri Compromise, had been keeping the peace by settling the issue of slavery expansion into the territories for 37 years. Now, by edict, and in a manner and scope never seen before, the Court had swept aside congressional compromise.

It was in the aftermath of the Dred Scott decision that Lincoln stated in his first inaugural address: “…if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by the decision 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.” 

In spite of Marbury and Dred Scott, the battle for preeminent branch remained between the legislative and executive for well over the first one hundred years of the country’s existence. Lincoln was able to expand the power of his office through extra-constitutional means and wartime “exigencies.” But after his death, Reconstruction ushered in an era where a Republican Congress was at odds with his successor and determined to take back lost ground.

The postbellum atmosphere was chaotic. The Radical Republicans were the first party willing to play fast and loose with the rule of law to such a large degree in order to further their political agenda. Andrew Johnson, a Democrat at heart, found himself in unprecedented circumstances. He was a chief executive trying to restore order to a defeated South (ten Southern States were still under military occupation while “Redeemers” were fighting to restore home rule). The new Republican Party, led by the likes of Thaddeus Stevens, had gained control of Congress for the first time and had a three-fourths majority in both houses.

The climate was ripe for drama, and the pugnacious Johnson was an easy target for impeachment. Johnson escaped conviction by one vote in the Senate, but his political career was over. By the time Johnson left office, legislative supremacy was firmly reestablished in Washington. In 1869 the Republicans got the man they really wanted in the White House, Ulysses S. Grant, who would go on to have, arguably, the most corrupt presidential administration in American history.

But something happened in the midst of impeachment proceedings that would bode ill as a result of unintended consequences. In a maneuver to try to buy time, Johnson submitted some of the legal issues regarding the House’s allegations against him to the Supreme Court, notably the constitutionality of the Tenure of Office Act, enacted over Johnson’s veto, which restricted the president from firing his own cabinet officers without Senate approval. In particular, Johnson had fired War Secretary Edwin Stanton, but Stanton refused to go and barricaded himself in his office in the War Department. Johnson named Army Adjutant General Lorenzo Thomas as his new war secretary. The trouble was, every time Johnson ordered Thomas to march over to the War Department and demand control, Stanton would refuse and Thomas would leave. At one point Stanton had Thomas arrested, only to drop the charges when Thomas threatened to file a writ of habeas corpus directly to…the Supreme Court.

The United States government during Reconstruction and the impeachment of Andrew Johnson was an unparalleled spectacle. At the heart of the bitterness was the battle between two branches of the general government for primary control. But, as it goes with jurisprudence, appealing to another entity casts at least the perception of legitimacy on that option. When Johnson appealed to the Supreme Court, the chief executive was, in essence, agreeing that the Court had the right to decide the issue.

Just look at what has transpired since Johnson left office in 1869. The main issue that led the House to impeach Johnson – whether or not he had the power to fire his own cabinet members without Senate approval – was left to the Supreme Court to decide. In 1926, the court ruled in Myers v. U.S. that a president could fire a postmaster without Senate approval. Tellingly, the opinion was written by the chief justice, former president William Howard Taft, who objected to what he regarded as an unwise congressional encroachment on executive authority. Dissenters Brandeis (a liberal) and McReynolds (an archconservative) argued that, regardless of the wisdom, the Constitution allowed it (“advice and consent”).

In 1933, the Court made a revision in Humphrey’s Executor v. U.S. FDR had fired the FTC chairman when he would not resign due to policy differences. The Court’s conclusion was that the Constitution had never given “illimitable power of removal” to the president and limited his removal power to only those officials who immediately served under him. In 1958, the Court (Wiener v. U.S.) again ruled the president (Eisenhower) could not remove personnel for expressly political purposes. And in 1986 (Bowsher v. Synar), the Court leaned toward the executive, saying Congress cannot create an administrative agency that performs purely executive functions and retain full authority over personnel removal.

What should not be lost in the technicalities of these hundreds of years of struggle is this: Congress and the president had been battling each other to determine which branch was more powerful, and they moved the stage for that fight to the Supreme Court and let that tribunal determine the winner. This, effectively, demonstrated that, regardless of whether Congress is more powerful than the president or vice versa, the Court, as ultimate referee, was more powerful than either – a position not held by the framers of the Constitution.

Nevertheless, in the twentieth century the Court continued to expand its powers by fiat and was one of the chief instruments (along with academia) used by the left to win the culture war. The legislature continued to abdicate its authority and surrender its powers of law-making to the judiciary. Since then, “rights” not found in over two hundred years of national jurisprudence, not to mention anywhere on earth in the history of mankind, have, amazingly, like rabbits being pulled out of magician hats, been “discovered” by the Court. 

New “rights” have been bestowed on criminals. The death penalty was (temporarily) outlawed for all fifty States while abortion was declared a “right.” Welfare benefits have been restored to illegal aliens in defiance of State laws prohibiting them. Homosexual sodomy and homosexual “marriage” have been declared “rights,” in spite of the wishes of the citizens of the States. Congressional term limits have been abolished. Broad new restrictions have been placed on State and local prosecutors, regardless of the State and local laws. 

In spite of Jefferson’s warnings, the reality is that we suffer under an unelected oligarchy. Somehow, we have gone from a constitutional republic to an imperial judiciary with all-or-nothing solutions. We have gone from a deliberative body, responsive to the people, crafting legislation while adhering to constitutional restrictions and acknowledging the reserved powers of the States, to an unresponsive, largely leftist handful of five-to-nine individuals whose “opinion” becomes the “law of the land” for fifty States and over 300 million people. We live in an age of undisputed judicial supremacy. Once the robed oligarchs on the Potomac “rule” on an issue it is considered by the large majority of citizens to be settled. No matter how passionate we may be against the issue, we throw up our hands. “Alas, ‘The Court’ has spoken.” 

Judges, who have never been police, dictate police procedure for the more than 15,000 law enforcement agencies in the country. In the safety and comfort of their air-conditioned, plaque-covered, Keurig-brewing personal offices, the justices conceive criminal procedure dictates as if they were dogmatic answers to algebra equations, instead of the real-life, real-time, split-second matters of life and death that they are.

While preparing for their next luncheon, brainstorming for their next speech, and having pages fetch items and run errands, judges, who have never been legislators, reach “opinions” transformed into “rulings” whereby they legislate from the bench. Indeed, it appears there is no field of life in which the robed ones do not regard themselves experts. Most seem to view their role not as applying the Constitution, but stretching that “living, breathing document” in whatever manner necessary to fit their preconceived position. And, therefore, there is no one-size-fits all solution that cannot be ascertained by their amazing intellect.

And it’s not just the citizens, mind you. Both of the other two “coequal” branches of the general government are fine with judicial supremacy. “The Court” holds sway. Its decisions are final. The only entity that dares to contradict The Court is…well, a later Court.

How did we get here? Conservatives and liberals alike are all in a state of frenzy over the next Supreme Court pick. Was this what the founders intended? Ron Paul does not think so:

It’s sad that so many Americans see their freedoms as dependent on a single Supreme Court justice. Federal judges were never meant to wield the tremendous power that they do in modern America. Our Founders would find it inconceivable that a handful of unelected, unaccountable federal judges can decide social policy for the entire nation.

Yes, Dr. Paul. It is sad. 

What has brought about judicial supremacy? The courts have become the repository of controversial issues. Since the early days of our republic, statesmen have increasingly been replaced by politicians. A politician’s primary focus is on increasing, or at the very least, retaining power. The best way to do this is by not risking any popularity on divisive issues. While presidents blame congresses, and congresses blame presidents, one certainty is that both blame the courts. Or, in their language, they “defer” to the sagacity of the robed ones. Congress has abdicated its constitutional duties, and lost its courage and wherewithal to do its job – govern. 

By effectively punting the controversial issues to the judiciary, legislators shift the responsibility to represent their constituents. They can go home and tell them how hard they tried, but, you know…”The Court.”

Oh, sure, I’d love to outlaw abortion, but, you know, The Court has spoken… Of course, I will fight tooth and nail for your second-amendment rights!…unless, you know, The Court… I tell you we will NOT allow that president to push his plan through. Why, if we have to, we’ll appeal to The Court!

Imagine that — Congress appealing to the Supreme Court. It seems preposterous when one considers Article 3, Section 2 of the Constitution, which includes the provision that in all cases lying outside the constitutionally-limited area of original jurisdiction “the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” This means that, rather than “appealing to The Court,” Congress has the power to limit the jurisdiction of The Court. If Congress wanted to pass legislation today that nullified Roe v. Wade and return the issue of murdering babies back to the States, where the crime and punishment of infanticide belongs, they could do so. According to Article 3, Section 2, Congress could add language in the legislation regulating the jurisdiction of the Court and prohibiting it from taking the issue under consideration. But, we know that will not happen. Congressmen do not have the stomach for such a step. Best to let The Court handle it.

A final word about the esteemed justices: The robed ones are largely considered to be men and women of great erudition and wisdom, schooled in the law, jurisprudence, and the Constitution. Most would agree their job is to apply the Constitution to an issue and determine, not what their own opinions on the matter are, but what the Constitution does and does not allow regarding the matter. 

Yet, these well-educated, learned, esteemed dispensers of law and order rarely agree with each other. How often do we see a unanimous decision? Note all the 5-4 and 6-3 decisions. I would think that if I were to sit down and examine a written document with eight of my friends (all of whom were not alumni of any great bastion of intelligentsia), while we may not agree on social issues, we could at least agree what the document expressly states. 

Yet, the robed oligarchs cannot do this. And five-to-nine of them continue making law for all the rest of us. 

Josh Doggrell

Josh Doggrell

1 Response

  1. Irv Phillips says:

    This is a very good article, but I do believe Mr. Doggrell is giving the Justices a bit too much credit: I’d pay a few bucks to see The Wise Latina’s Algebra I grades.