When it comes to contentious Supreme Court decisions like Roe v. Wade and Obergefell v. Hodges, too often are the words “it’s the law of the land” used. This is a statement that blatantly twists the clear words of the Constitution. Sadly, this broken understanding of the roles of the three branches of government has been echoed by virtually all levels of American government (federal, state, and local), culture, and opinion.
Further, this twisted understanding has given federal appeals courts magnificent power that nothing in the Constitution really authorizes. Consider how dangerous it is that a single court can decide what the law is for everyone, whether or not they are plaintiff or defendant, and the only right of appeal is higher up.
I’ll delve into the chilling effects deeper in later posts, but this one will outline why “it’s the law of the land” is total poppycock.
NB: Roe v. Wade legalized abortion under all circumstances through the Fourteenth Amendment. Obergefell v. Hodges gave a Constitutional right through the Fourteenth Amendment for same-sex couples to marry.
The Jurisdiction of the Supreme Court: Article III, Section 2
The overall jurisdiction of the Supreme Court is clearly outlined in the opening sentences of Section 2 of Article III of the US Constitution (I’ve taken the liberty of numbering them for easier reference):
(1) The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;
(2) to all Cases of admiralty and maritime Jurisdiction;
(3) to Controversies to which the United States shall be a Party;
(4) to Controversies between two or more States;
(5) between a State and Citizens of another State;
(6) between Citizens of different States;
(7) between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects.
Before going further, it is critical to understand that the mentions of “United States” here is explicitly the Federal Government, not an ephemeral “every citizen.”
(1) is the most clear-cut authority that the Supreme Court has. If the US Congress passed it (including the Constitution itself), the Supreme Court can review it.
(2) is talking about US territorial waters and the like.
(3) would show clearly in a case’s names, as “United States v. [Somebody Else]”.
(4) would also show clearly as “[State] v. [State]”.
(5) would be “[State] v. [Somebody else]”
(6) would be “[Somebody else] v. [Somebody else]“, which would make it the least “clear” from title alone who the parties are
(7) is a catch-all for cases between states, between states’ land owners, and with foreign plaintiffs or defendants.
At first glance, (1) would make the decisions mentioned above “covered.” Problem: the actual cases weren’t against the Fourteenth Amendment, or a federal entity.
The “Wade” of Roe v. Wade was the Dallas County District Attorney for the State of Texas.
Obergefell v. Hodges is even more complex, as it was a consolidation of 6 separate cases from 4 different states. “Hodges” was the Director of the Ohio Department of Health, though all six of the original cases were against states (namely, Kentucky, Michigan, Ohio, and Tennessee).
(5) also seems to bear on the two decisions I’m illustrating. Except…all plaintiffs for these cases were bringing suit against the state they were citizens of.
In summary, the first flaw in the current understanding of the Supreme Court’s role is this: it does not actually have jurisdiction for the majority of “landmark” cases.
The Role of the Tenth Amendment
At first blush, it would seem to be not just relatively harmless, but helpful for the Supreme Court to “settle” legal disputes that might be of interest to the wider population of the United States, and not just to a particular state. That’s been the core argument for landmark cases like Roe v. Wade, Obergefell v. Hodges, Brown v. Board of Education, and Plessy v. Ferguson.
NB: Brown v. Board of Education spurred desegregation. Plessy v. Ferguson created the “separate but equal” segregation policy Brown ended.
Unfortunately for this interpretation, it doesn’t stand up to Constitutional scrutiny. For one, the remainder of Article III of the Constitution is extremely light on details; it doesn’t even outline how many justices are on the Supreme Court, much less the Courts of Appeals, District Courts, and the nature of the Circuits system.
For two, there’s the explicit text of the Tenth Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
To untangle the language a bit, if the Constitution does not explicitly say it’s a power of the Federal Government, it isn’t. If the States aren’t prohibited from having that power (e.g., setting state taxation), they have it. If the States are prohibited (e.g., the First Amendment, among others), the people themselves hold the right.
The entire point of the Tenth Amendment was to be an almost unlimited check on the size of the federal government. Only what was outlined in the Constitution and its Amendments was under federal power. Everything else is with the States or the individual citizens of the United States, including whatever element of society just didn’t exist in 1791 (when the Bill of Rights was passed).
That immediately extends back to the jurisdiction problem, and notes what the “public interest” approach to Supreme Court cases really is: a willful overreach by the federal government, enabled by the States, on the Tenth Amendment’s explicit protections.
Judicial Review is Not Law
The landmark case Marbury v. Madison established the philosophy of “judicial review,” the basic concept that allows the Supreme Court to declare a law “unconstitutional.” Ever since then, these interpretations have been a critical part of the judicial branch noting when a law or executive action does not match up to the Constitution.
Of particular interest is Thomas Jefferson’s immediate reaction to the decision:
You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. (The Writings of Thomas Jefferson, Letter to William Jarvis (September 28, 1820))
On its face, judicial review is a reasoned explanation of why this or that law is Constitutional or not. Supreme Court decisions are called opinions for that reason. While it is certainly an important opinion, it is not itself law.
This leads back to the core problem: Congress and the President have abdicated their responsibility to explicitly enshrine the opinion in binding law or changed executive policy. Through inaction, they have crafted the very oligarchy Jefferson warned against.
“…Then Who Settles These Cases?”
Due to the nature of these cases, it should have reached the respective state Supreme Court (e.g., the Texas Supreme Court), and they rule on it based on their Constitution and the US Constitution. The decision would have been official legal opinion for that state.
“…What If Congress or the President Decides to Ignore the Supreme Court?”
They should if they can explicitly point to an equally reasoned approach to disagreeing with the Court’s opinion. The rightness of that decision will be borne out by whether those who did it are re-elected, and whether the following President or Congress keeps the policy in place. If the wrongness of the President’s actions, or a particular member of Congress’ is that egregious, the Constitution provides for impeachment.
“…How is the Public Interest Served?”
If a particular legal matter, settled by a state, is truly of public interest, it should be proposed as legislation in Congress. If it is in the public interest, Congress should have no difficulty passing such legislation, with the President signing it into law.
“…That Makes It Take Forever!”
Which is actually the entire point. Federal legislation was supposed to be limited, slow, and so difficult to accomplish that the only things that would be passed were clearly agreeable to a majority of people.
We’ve all bought the lie that issues with the narrowest margins of support deserve to be enshrined as effective law. Regardless of the “rightness” of a given cause, if a clear majority of people doesn’t exist, it’s not “right” enough.
Consider that the Thirteenth Amendment (abolishing slavery) took decades of engagement by abolitionists and a Civil War that neutralized the entire majority dissent’s voice. (But that’s a whole ‘nother topic)