As covered in my previous article about the undue power of the Supreme Court, America’s joint deference to whatever a court says has no basis in the Constitution. But more worryingly, this deference has a large number of effects that undermine the entire concept of the republic our nation is organized as.
Thomas Jefferson on Marbury v. Madison
Before launching into the effects, let’s look again at the quote from the previous article, with emphasis added:
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))
Originalism vs. Activism
There are two primary “schools of thought” which suffuse the judicial system nowadays.
Originalists take the Constitution and its Amendments as literally as possible, taking into account the historical context of the documents and the most likely meaning based on the writings of the framers who wrote them. Among the most famous originalists was the late Antonin Scalia.
Activists take the Constitution as a “living document” that must be interpreted in light of the prevailing society at the time of the case. This has led invariably to the majority of contentious Supreme Court decision, from Dred Scott v. Sandford to the most recent Obergefell v. Hodges.
NB: Dred Scott v. Sandford enforced the Fugitive Slave Law in all states, including “free” states, prior to the Thirteenth Amendment. If anyone caught an escaped slave, they were obligated to give them back to their master.
In every case, enough judges took into account social trends and opinion, and adjusted their ultimate opinion to match what they believed to be the “right” course of action, often in rank ignorance of the text of the Constitution (or applicable laws). Based on the dismal record of many of these decisions (Dred Scott and Plessy in particular), this is just as much a recipe for “getting it wrong” as “pushing society forward”, the ostensible aim of activists.
The fact that there are these two schools of thought, and the balance between them on a court are extremely important issues to the American public shows clearly the effective despotism of our judicial system. Because the President, Congress, and most importantly the American people have abdicated “the last word” to a branch of government with no check beyond their inability to enforce, how justices view the Constitution overrides any other consideration.
The Ends Justifies the Means
Because of the large-scale abdication to the judicial branch, and the prevalence of judicial activists (who more often than not profess “progressive” views on society), pushing contentious cases into the judicial system has become a favorite tactic of those who want to get social change without all the dirty work of convincing the population at large of its rightness. Just start a case near a friendly judge (or panel of judges), and watch them deliver what no amount of legislating would ever accomplish.
Countless cases have been ruled at district, circuit, and Supreme levels of the judicial system under an activist approach, the opinions then handed back to awestruck governors, legislators, and private citizens who dare not say the court “got it wrong”, but instead immediately seek to get a different opinion from a higher court.
While strictly speaking this is the correct thing to do for the case at hand, it goes one step too far because of case precedent.
Case Precedent as Binding Law
One of the foundational principles of Common Law is case precedent. Put simply, the ruling in a previous case within the court’s jurisdiction (or at a higher level) must be taken into account for the ruling in any future cases related to the issues presented in that case. This is why even the most cursory glance at a court opinion will reveal it littered with case citations.
NB: Mapp v. Ohio is another well-known landmark decision, preventing evidence collected during an illegal search and seizure from being used in court. It is a fantastic defense of Fourth, Fifth, and Sixth Amendments.
This is fantastic for an individual court or court system. This puts a level of continuity into the judgments that a court can make, as violating case precedent is grounds for dismissal from the bench (and justifiably so, as it would break common law completely).
Conversely, this is awful for anything else. The common understanding is that if a court rules on something, the case precedent now applies as a binding law to everyone in that jurisdiction, whether or not they were parties to the case. How wrong this is is illustrated by the suspension of Justice Roy Moore after his Constitutionally and legally sound argument that since Alabama was not a direct party to Obergefell v. Hodges, it was not “settled law” for the state and the state Supreme Court needed to weigh in.
Cases should bind exactly two entities:
- The parties to the case (plaintiff and defendant) who must abide by the judgment
- The court itself for considering future cases (and any courts “below” it in the hierarchy)
There is no third class of “potential future parties,” which is exactly what the binding law approach functionally is.
“The Weakest Branch of Government”
In Federalist No. 78, Alexander Hamilton stated (emphasis added):
The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of 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 even for the efficacy of its judgments.
The Sword is what the executive branch holds, the Purse is the legislative branch’s. Without force or will, the judicial branch has only words. Considered, thought-provoking words, but still just words.
This lack of direct power was the original reason judges were given no term limits (unlike the regular elections of both President and Congress). No terms was meant to insulate them from the very activism that infests the system today. Since they weren’t accountable to often-fickle voters, they had the political luxury of meting out the right judgment in light of case precedent and the Constitution.
The oligarchical power that the judicial branch wields today was supposed to be undercut by its inability to enforce. The Supreme Court had to convince the President and Congress with its words, and they were to then effect the opinion through either law or executive order.
But rather than taking the Supreme Court (or any other court) under advisement, their true original role, we have all chosen to let their words have the force of law, their opinions the weight of the sword. It is no surprise that the very tyranny of the oligarchy Thomas Jefferson warned against is in our midst.