Thom Hartmann: Democratic Underground Readers are Wrong on SCOTUS

[RBInMaine]

11. It is true that they placed the legislative branch in Article One to emphasize their especially

strong value of the directly elected legislature. At the same time, as stated in the Federalist Papers in various locations including that cited in reply to the OP here, the Framers pushing the new Constitution repeatedly assured their skeptics that their fear of any one branch of government overtaking the other would be prevented through the system of checks and balances. It was entirely their intent to frame up the Constitution in such a manner as to ensure that we did in fact have co-equal branches with an effective system of checks and balances. It states in the federalist papers that, indeed, the populace is the first check on government power. But beyond that, we would have this careful system of checks and balances to prevent any one branch from acquiring excessive power. As the constiutional scholars and experts, it is certainly the intended role of the court to be the arbiter of the Constitution and function to interpret its intent and decide if laws or parts of laws are constitutional. Again, the role of the court is to interpret and apply the Constitution. It can not place a check and balance upon the power of the legislative branch without the authority to overturn laws or parts of laws they deem in conflict with the Constitution. Without this authority, when would "separate but equal" in regard to school segregation have finally been struck down? Without this authority, when would laws outlawing abortion rights have been struck down? This function is essential if checks and balances and co-equality are going to really mean anything. And how do you place the court in check? You refine the laws or parts of laws it strikes down. You also elect Presidents and Senators who will appoint and confirm the best justices.

It is also true that the Supreme Court was not intended to overturn laws lightly, and that the Legislative and Executive branches, who are much more directly accountable to the people, need to be extended considerable deference in their lawmaking authority. This is one way that the SCOTUS of late has strayed. They are striking down laws and parts of laws for political and ideological reasons entirely, and not showing enough due deference to the other branches.

Many constitutional scholars would disagree with Hartman.