The deadliest day in the American political calendar is June 30, when the Supreme Court dumps the last of its decisions for the judicial year on a public waiting to see what will be left of freedom, due process and Constitutional rights for further demolition. As numerous scholars have observed, the Supreme Court has been the most reactionary institution in American public life over the course of the nation’s history, and the one whose conduct is the least grounded in Constitutional warrant, if indeed compatible with it. The damage it is doing today is greater than ever. The majority of its justices are personally corrupt, guilty of perjury or at best willful deception in sworn testimony at their confirmation hearings, or both. It is at the same time the only court in the land that refuses to recognize a binding code of ethics and conduct. Above all, it reserves to itself the power to modify or overturn statute law duly enacted by Congress. This usurped authority, suggested nowhere in the Constitution, goes by the name of Judicial Supremacy. It does not exist in law and should not exist in practice. Judicial supremacy was obtruded into the Court’s authority in an obscure case, Marbury v. Madison, in commentary by Chief Justice John Marshall in which he asserted the Court’s power to judge the compatibility of a given law or practice with the principles and intent of the Constitution. Marshall’s claim caught the attention of then — President Thomas Jefferson, who observed that if such an obiter dictum were accepted, the republic would perish. That prediction is closer to realization today than at any time in the past century and a half. Marshall did not act on his claim in the remainder of his 32 years on the Court, but left it as a time bomb for the future. The bomb exploded in the Dred Scott decision (1857), when the Court declared slavery legal and escaped slaves’ property to be returned to their masters from any jurisdiction.
The direct result of this, three years later, was the Civil War, waged at a cost of 700,000 lives, and a legacy of racist resistance that continues to the present day. No court has ever acted more wantonly or destructively, or with more lasting damage. And yet, although three amendments to the Constitution were added to abolish slavery and instate freedom and citizenship for all former slaves, the Court has retained its pretended, quasi-legislative power of judicial supremacy to this day, affirmed it more assertively than ever in its just-concluded term in striking down affirmative action, a program enacted and unrepealed by Congress (Students for Fair Admissions v. President and Fellows of Harvard College and the University of North Carolina). Did Dred Scott ‘cause’ the Civil War? In itself, of course not. But it lit the long fuse that, as Abraham Lincoln put it, had divided the house of the republic against itself. Slavery would have been legally abolished in the Western Hemisphere within the next generation, and without major war except in the United States. Could that war have been avoided, with all the destruction and bitterness it left in its wake? One cannot say for sure. But Dred Scott ensured that it would come, as it swiftly did. In our time, the question that has most deeply divided the country was also framed by the Supreme Court in an unconstitutional exercise of usurped powers. The issue was abortion, and the Court’s intervention in it in Roe v. Wade (1973) polarized and politicized it, making it the most divisive subject of the past fifty years. To be sure, it was one that cried out for national determination, as slavery had. But the appropriate place for that determination was Congress, and without a consensus of opinion none could be made that would hold. The result, in Dobbs v. Jackson Women’s Health Organization (2022), was a revocation of the assertion in Roe of a constitutional,if circumscribed, right to abortion decided by the deliberation of nine unelected males, whose robes gave them no greater wisdom or credibility on an issue of passionate moral division than anyone else’s, and whose legal rationale was widely criticized. No war may result from this, but no issue has been more deeply contested, or with higher social stakes, than since slavery itself.
One result has been to put the Court on the wrong side of public opinion. When affirmative action was written into the Civil Rights Act of 1964, 70 percent of Americans supported it. Dobbs now places the Court on the wrong side of the approximately 70 percent of Americans who support legalized abortion in some form or other. And the Court’s remedy for its self-inflicted crisis, to leave the matter to state legislatures for resolution, only compounds the problem fifty-fold.
These circumstances have brought the Court to crisis. The solution does not lie solely with
reforming the Court itself, because all three branches of government are now out of the balance that the Founding Fathers conceived for them. Congress, which the founders conceived as the prime branch, has conceded much of its legislative and warmaking authority — its principal powers — to a vastly enlarged and enhanced executive and to an increasingly aggressive use of judicial supremacy. Since the Court’s exercise of this alleged supremacy has extended to both other branches, it has in its present incarnation freely struck down statutes and policies of both those branches on a state as well as federal level. By overturning with ever-greater frequency what appeared to be its own settled precedents, with Roe v. Wade only the most notable example, it has edged for many from supremacy to something closer to the arbitrary decisions of a tyranny. It has thus become a theater of political contest, with highly organized political and economic interests, particularly on the Right, vying for control of its agenda.
Inevitably, that has led to the corruption in which the Court is presently steeped. This has led the country to something far removed from democracy, as it waits annually for the determination of nine unelected justices for the rules under which it will live. To rectify this state of affairs adequately will require a serious rethinking of the role of all three branches. But the removal of judicial supremacy is the most presently critical step. What should replace it? The Court’s opinions should be advisory, not determinative, as regards all statutory and administrative practice, and left to the disposition of the two branches of government exercising legislative authority to take such action as may provide appropriate remedy. The Court should not declare the law. Still less should it seek to make it, as it so often does today. If it acts within this boundary, it can serve as a useful supplement to the legislative process. It should in no case supplant it. As part of such a reform, the Court could be asked for advice on contested legal issues by the lawmaking branches. It should not simply set an agenda of its own, the first step in usurping the legislative power. Its rightful authority, and its public esteem, will benefit by this. So will the public welfare.
Eliminating judicial supremacy will not solve the problems of the commonwealth, nor will there
ever be any perfect formula for human government. Democracy, in the final analysis, is the
acknowledgement of that fact. But it is, at this moment, an essential step to righting a condition that is deeply unbalanced.