Summary: The charges and counter-charges about Kavanaugh obscure the key issue. The Court has become too powerful, so fights for control of it inevitably become fiercer. This will continue until something breaks in our politics, or we reform the Court.
The Court’s Justices are still writing the Constitution.
Last week I explained how the Kavanaugh hearing showed that our system is broken. Comments showed that I was not clear. We need to understand that the Democrats’ attempt to stop Kavanaugh’s nomination is natural and proper. It is an inevitable evolution of the US political system created by the Justices in their rulings in Marbury v. Madison (1803) Griswold v. Connecticut (1966). These gave the Supreme Court powers not only far greater than planned by the Founders – but also ill-defined and lacking clear limits.
This gives the nine justices vast discretionary power. They have lifetime tenure. The Court is practically free from the checks and balances that limit Congress and the Executive. There is only the theoretical ability of Congress to limit some aspects of the Court’s purview (jurisdiction stripping).
The Supreme Court’s website says “Few other courts in the world have the same authority of constitutional interpretation.” I do not believe any other nation vests such power in so few judicial hands (see Britannica’s entry on judicial review).
No other nine people in American have, collectively, such political power. They can declare that slaves are not citizens (Dred Scott), that corporations have the some of the same rights as people, redefined the meaning of the Second Amendment (overturning a century of precedents in Heller), and changed America in a thousand other ways. It is the undemocratic heart of our political regime.
Slowly the informal norms limiting Justices’ use of this fantastic power have faded. Precedents many decades or generations old can be destroyed on a day. New rights can be created at will. Nobody can predict what they will do. This leads to greed for power – and fear of defeat. The fight for control of the Court becomes savage.
Paul Krugman gets hysterical: “Kavanaugh Will Kill the Constitution.“
Control of such power warrants almost unlimited effort. With each confirmation hearing, the weaker side goes further to stop it. The conventions that limit what can be done erode away more. This is logical and inevitable. Editorials pleading for polite behavior will not stop this process becoming uglier with each cycle.
Next: impeachment hearings to change the composition of the Court. As seen with Kavanaugh, it is relatively easy to find (or manufacture) stories about a justice’s past. Creative minds can find ways to convert these into impeachable charges. That is unthinkable now, just as these hearings were unthinkable a decade ago.
The clown show of these nomination hearings should warn us that the Court’s power is too broad and large. Only one thing can stop the Justices’ ever-bolder exercise of power and ever-growing intensity of their nomination process – and increasingly savage fights for control of the Court: limit the power of the Court. Roll its authority back closer to what the Founders intended. Or we can reform the Court along the lines of top courts in other democratic nations.
It will take a Constitutional amendment to fix this. That will be difficult and slow. But it is necessary, as will become steadily more obvious over time.
Posts about the Kavanaugh hearing
- The Kavanaugh hearings’ warning: the Court is so powerful that extreme measures are appropriate to take control of it.
- Hidden knowledge: false rape accusations by women are common.
- Lies are a useful and appropriate tool to use for political conflicts.
- The Kavanaugh hearings: lawfare used against us.
- The heart of the Kavanaugh hearing is our false confidence in our ability to tell lies from truth.
For More Information
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If you liked this post, like us on Facebook and follow us on Twitter. See all posts about the Supreme Court, about Reforming America: Steps to New Politics, and especially these…
- Another American judge weakens the Republic’s foundation.
- Should we thank the Court as it rescues us from our bad laws? Or just bow?
- The Court overturns two laws passed by Congress. Everybody cheers!
- Unequal representation caused problems for Britain in 1776, & will for us soon.
- After 230 years, the Constitution needs fixing.
- The Kavanaugh hearings show our broken Court.
The book version of this post
The Most Dangerous Branch: Inside the Supreme Court’s Assault on the Constitution
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By David Kaplan (2018).
A good liberal, Kaplan became upset about the Court’s power only when the Right took control of it. But his supporting evidence and logic are sound, despite his partisanship. From the publisher …
“With the retirement of Justice Anthony Kennedy, the Court has never before been more central in American life. It is the nine justices who too often now decide the controversial issues of our time – from abortion and same-sex marriage, to gun control, campaign finance and voting rights. The Court is so crucial that many voters in 2016 made their choice based on whom they thought their presidential candidate would name to the Court. Donald Trump picked Neil Gorsuch—the key decision of his new administration. The next justice – replacing Anthony Kennedy – will be even more important, holding the swing vote over so much social policy. Is that really how democracy is supposed to work?
“Based on exclusive interviews with the justices and dozens of their law clerks, Kaplan provides fresh details about life behind the scenes at the Court – Clarence Thomas’s simmering rage, Antonin Scalia’s death, Ruth Bader Ginsburg’s celebrity, Breyer Bingo, the petty feuding between Gorsuch and the chief justice, and what John Roberts thinks of his critics.
“Kaplan presents a sweeping narrative of the justices’ aggrandizement of power over the decades – from Roe v. Wade to Bush v. Gore to Citizens United, to rulings during the 2017-18 term. But the arrogance of the Court isn’t partisan: Conservative and liberal justices alike are guilty of overreach. Challenging conventional wisdom about the Court’s transcendent power, The Most Dangerous Branch is sure to rile both sides of the political aisle.”
Yes, agreed with this. Its almost never diagnosed or analysed, but this is a very clear headed look at it.
The Supreme Court’s power is indeed too great. So what is the Constitutional amendment that will fix it?
Mike,
“So what is the Constitutional amendment that will fix it?”
It is yet to be written. Both factions of our ruling elites applaud the vast undemocratic power of the Supreme Court. They believe they will possess it, hence don’t want to reform it.
Should one side get long-term control, then the other might become interested in limiting the Court’s power. But then, of course, they probably will be a minority part and so unable to do so.
You express well some concerns I have had for some time.
The reactionary left, as we are seeing play out, is even less constrained than the reactionary right.
But they are far better organized and willing to tolerate mob tactics and commit violence.
Unspoken in this, as far as I can tell, is how American oligarchs are fueling, funding be and seeking to profit from this assault on the Constitution.
Because with lefties overtly threatening judhes now, as well as assaults and intimidation on Congress, we are rapidly entering a new, dangerously dark ages.
hunter,
That’s a good summary.
“Why” is always the most important and most difficult to answer question. We can only guess. But the clear fact is the most important: we’re losing. Losing fast. Losing big.
“We need to understand that the Democrats’ attempt to stop Kavanaugh’s nomination is natural and proper. It is an inevitable evolution of the US political system created by the Justices in their rulings in Marbury v. Madison (1803) Griswold v. Connecticut (1966). These gave the Supreme Court powers not only far greater than planned by the Founders – but also ill-defined and lacking clear limits.
“This gives the nine justices vast discretionary power. They have lifetime tenure. The Court is practically free from the checks and balances that limit Congress and the Executive. There is only the theoretical ability of Congress to limit some aspects of the Court’s purview (jurisdiction stripping).”
Marbury is an example of USURPATION. The Constitution nowhere delegates such legislative power to the Supreme or to any court.
“Giving” oneself power is TAKING said power.
The US Supreme Court is partially modeled on the UK’s supreme court, the House of Lords. The Lords cannot repeal or amend Acts of Parliament. The Lords cannot enact legislation. The supreme power of the Lords is to acquit in the instant case before the Court when the Court determines that the Act, as enforced, is violative of the British constitution. This is a power similar to the Common-Law power of the Jury to exercise Jury Nullification, which extends only to the case under consideration. It doesn’t create precedent, stare decisis. It may influence the Parliament to amend or repeal the relevant Act.
For Congress to remove a subject from the jurisdiction of the United States Supreme Court does not affect earlier rulings. Conservatives, Pro-Lifers, who drive toward a goal of overthrowing the infamous Roe v. Wade/Doe v. Bolton decree, would still have a long battle against all of the bad law (not only from their perspective but from many Pro-Choice legal analysts) that has proceeded from Roe. The Conservative justices have averred that they will not “overthrow” Roe. It will have to be picked away bit by bit, which even if eventually successful will likely take decades.
Henry,
“Marbury is an example of USURPATION.”
Whatever. Systems evolve, just like people. If you want to fret about early stage evolution two centuries ago, feel free.
That’s like the spit hole Balkan states where people are aroused by battles lost centuries ago. It makes them easy to rule in their fractious little states.
The rest of us will look at America as it is today and seek to find ways forward.