How did we ever get into this mess of where five people, coming down to one, can run an entire country of some 350 million people? There’s something wrong with this picture. It’s been so since John Marshall’s tenure as chief justice of the United States. There’s a reason Marshall’s huge statue and quotations grace the basement floor of the Supreme Court building in Washington, D. C. He gave the Supreme Court its unchallengeable superiority in legally running the country.
British Prime Minister Benjamin Disraeli said near the end of the 19th Century that the U. S. Constitution was “the most remarkable political document ever struck by the hand of man.”
Yes, “political,” but not legal document. I say this because I believe the U. S. Constitution is seriously flawed in one major regard: the selection, limitations, and control of Supreme Court justices. We let them run unhindered legal matters in the entire country.
In Italy the constitutional court has 15 judges, one-third nominated by the president, a third by the Parliament, and one-third by administrative supreme courts. The judges are appointed for nine years and can’t be reappointed.
In contrast, the nine U. S. Supreme Court justices are appointed by the president, with the advice and consent of the U. S. Senate. Their appointments are for a lifetime. Worse, these appointments are always political. Democratic presidents appoint, always, center-left justices, and Republican presidents appoint, always, center-right justices.
Presently, the U. S. Supreme Court is comprised of four liberals and five conservatives, though Chief Justice John Roberts is becoming increasingly a swing vote. This is to say that five justices can legally run and control legal aspects of the entire countryfive. That is an imperial courtfine if it suits one’s politics.
Constitutional scholar Jeffrey Toobin has observed: “When it comes to the core of the Court’s work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases. . . . When it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices.” What separates justices “is judicial philosophyideologyand that means everything on the Supreme Court.” Five people.
Similarly, Richard A. Posner, the great conservative judge and law professor, has written: “It is rarely possible to say with a straight face of a Supreme Court decision that it was decided correctly or incorrectly.” Constitutional cases, he adds, “can be decided only on a basis of political judgment, and a political judgment cannot be called right or wrong by reference to legal norms.”
A second major flaw with the U. S. Constitution is that the Supreme Courtthe third branch of government in addition to the executive and legislative branchesis not governed by checks and balances. It gets away scot-free.
Presidents, on the other hand, have to be elected and re-elected, and their actions can be overridden by Congress. Congress, too, has to be elected and re-elected, and their passed bills can be vetoed by the President. No such governance controls the Supreme Court. I have to say that the Italian Constitutional Court is far more democratic than ours.
This extraordinary singular, unchecked power of the Supreme Court began in 1803 with Marbury v. Madison, where for the first time, the Supreme Court ruled an act of Congress unconstitutional. They’ve been running the show and the country ever since.
The only way this power play can be stopped is through a constitutional amendment. That is nearly impossible now owing to the mammoth hurdles.
The late Robert Bork argued that Congress should be allowed to veto an act of the Supreme Court and that if that were a failure, it would at least be a failure of democracy. With today’s Congress, that is a frightening thought.