The Supreme Court Is Not Supposed to Have This Much Power

[In It to Win It]

And Congress should claw it back.

The Atlantic

No Paywall

It’s June again—that time of year when Americans wake up each morning and wait for the Supreme Court to resolve our deepest political disagreements. To decide what the Constitution says about our bodily autonomy, our power to avert climate change, and our ability to protect children from guns, the nation turns not to members of Congress—elected by us—but to five oracles in robes.

This annual observance of judicial supremacy—the idea that the Supreme Court has the final say about what our Constitution allows—is an odd affliction for a nation that will close the month ready to celebrate our independence from an unelected monarch. From one perspective, our acceptance of this supremacy reflects a sense that our political system is simply too broken to address the most urgent questions that we confront. But it would be a mistake to see judicial supremacy as a mere symptom of our politics and not a cause.

Contrary to what many people have come to believe, judicial supremacy is not in the Constitution, and does not date from the founding era. It took hold of American politics only after the Civil War, when the Court overruled Congress’s judgment that the Constitution demanded civil-rights and voting laws. The Court has spent the 150 years since sapping our national representatives of the power to issue national rules. These judicial decisions have destroyed guardrails that national majorities deemed vital to a functional, multiracial democracy—including protecting the right to vote and curbing the influence of money in politics. Even worse, the Court’s assertion of the power to invalidate federal laws has stripped Americans of the expectation, once widely shared, that the most important interpretations of the Constitution are expressed not by judicial decree but by the participation of “We, the People,” in enacting national legislation.

Through the Civil War and the Reconstruction era that followed, the politically dominant Republicans in Congress enacted legislation to build a multiracial democracy in the United States for the first time. Some of these laws boldly overruled the Court, including statutes in 1862 and 1866 that began the abolition of slavery and recognized the citizenship of Black people. Others prevented the Court from retaliating against Congress’s interpretation of the Constitution, such as legislation stripping the Court of jurisdiction over certain matters. Still others enlisted the Court in the project of enforcing Congress’s constitutional judgments. Acts in 1870 and 1871 instructed federal courts to enforce the Thirteenth, Fourteenth, and Fifteenth Amendments against recalcitrant state officials, while acts in 1870 and 1875 tasked judges with banning voting restrictions, lynch mobs, and racial discrimination.

Yet as the Reconstruction Congress recognized, everything the Court has the power to do comes from federal statutes passed by Congress—statutes that a majority of Congress always has the power to amend.

[jimfields33]

1. The final law of the land

We got gay marriage from them and many good advances.

[Mad_Machine76]

7. But

As we’re about to learn with Dobbs, their “final word” is apparently not always the “final word”.

[intheflow]

12. We got Roe, too, but it appears that's not final, either. n/t

[Lettuce Be]

2. The Supreme Court is supposed to be a third-branch not the final arbitrator

Not sure how this "let the Supreme Court decide everything" happened but it needs to stop, now. They are not there to make law. They are there to simply interpret the law as it stands, which is why, IMHO they should not be destroying or tearing down settled law (precedent). My bigger complaint is how religion seems to be guiding some judge's decisions, which is absolutely not how judicial decisions are made (or should be made).

[2naSalit]

3. +1

[Frasier Balzov]

4. The two political branches are hardly guardians of your rights.

Congress and the Presidency are too vulnerable to the fears and prejudices of the American voter.

It's the Court which is in the best position to drag the nation kicking and screaming into modernity.

However, as Dred Scott, Plessy, Heller and Dobbs have shown us, the Court can also block and disrupt progress and ossify our backward ways.

[In It to Win It]

5. I agree

I think you hit on an important point in that the Court is in the best position to drag the country into modernity. As shown with decisions like Dred Scott and the potential Dobbs decision, Congress has to do some of the heavy lifting also. Congress also needs to drag the court kicking and screaming as well when the moment calls for it. It was Congress that dragged the Court into modernity in the 19th century, and now in the 21st century, Congress has to step up to that plate again.

This particular Court is not looking to drag the country into modernity. We may get some surprise forward looking decisions, here and there, but for the most part, we’re sliding backwards. The challenging part is that half of the Senate is also trying to drag us backwards and have installed a Court that will do the same, and we somehow have to overcome that giant GIANT obstacle.

[Frasier Balzov]

11. They cheated to get us here.

McConnell refusing to confirm Garland.

Multiple justices giving deliberately misleading testimony regarding their attitude toward *certain* precedent.

Collusion, deception, obfuscation.

Unfortunately, our only chance to course correct is through the political process, which is time consuming, labor intensive, and UGLY.

[TomSlick]

6. The quoted article is not completely accurate.

It is true that the idea of Supreme Court being the final arbiter of the meaning of the Constitution is not clearly specified in the Constitution. However, the idea had nothing to do with the Civil War.

The idea of judicial review by which the Supreme Court could overturn executive and legislative action as unconstitutional began with Marbury v. Madison, 5 US 137 (1803).

[In It to Win It]

8. I think the article accepts that the idea came from Marbury v Madison

I interpreted the article saying that although the idea originated in Marbury v Madison, others weren’t convinced of Court’s power of judicial review until after the Civil War. At least, that’s how I read it.

[Ferrets are Cool]

9. They have appointed themselves the RULERS of America

[budkin]

10. In their minds, the voters put presidents in place that would shape the court this way

"The will of the people!" Farcical I know, but that's what they'd say.

[Whatthe_Firetruck]

13. Another article here said that they are poised to remove Miranda rights. n/t