Wednesday, May 27, 2009

What does the Constituion say about the Supreme Court?

The U.S. Supreme Court these days seems to really like legislating, or creating policy, from the bench. It seems more lately that they are letting their political ideology cloud their objective nature in determining whether or not a law is constitutional or not or when decided cases. Are these acts in and of themselves constitutional?

I decided to do a little bit of studying in regards to this and here is what I found:

Here are the powers of the Supreme Court as prescribed in the U.S. Constitution:

Article 3, Section 1:

"The judicial power of the United States, shall be vested in one
supreme court....."

But what sort of judicial power in invested to this court?

Section 2:

"The judicial power shall extend to all cases...arising under this Constitution, the laws of the United States, and Treaties made...under their authority......trials of all crimes, except in cases of impeachment, shall be by jury and such trial shall be held in the state where the said crimes shall have been committed...."

Okay, this has nothing to do with this post but if you read this particular section and take it literally, the Timothy McVeigh trial was unconstitutional.

So far, the actual powers of the Supreme Court in my opinion are pretty darn vague. What about legislating from the bench? Is that unconstitutional?

Alexander Hamilton, wrote in the Federalist Papers regarding judicial review (the "implied" power of federal courts to overturn the actions of the other branches of government):

"The interpretation of the law is the proper...province of the courts. A constitution..must be regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body...."

The basis for the idea of judicial review stems from the case Marbury v Madison. This was the first case in which the Supreme Court declared that something was unconstitutional.

The problem with judicial review is that is simply has no textual basis in the U.S. Constitution. The theory behind judicial review was to promote checks and balances between the three branches of our government however the Supreme Court remains the least checked of our branches of government. When was the last time a justice stood on trial for their good or bad behavior? In all the years of the Supreme Court, in its entire history, only one justice has ever been impeached. That justice, by the way, was not removed from office.

The Supreme Court is the only branch of government that is not accountable to by the people of the United States. Personally, I don't like the idea of someone holding such a high and powerful office where the people have no say in who holds that position.

President Obama just nominated his first nominee for the Supreme Court. The reason why a President's nominations for this court are so important is because that particular President wants that justice to have an impact on the laws of our country well after he is no longer President. Personally, I think that is just wrong.

I think the justices of the Supreme Court should be elected, just like any other national political figure. Not that I think this would ever happen. That would take some major changes in our Constitution.

However, if they have to be appointed by the President, make them like members of his cabinet. When he leaves office, they leave office and a new Supreme Court takes over when the new President does. However, like the other idea, this would never happen and if it did would take some major revisions to enact them.

Sure the Constitution is a great document that our country is based on but there were some flaws in it. I think the lack of information regarding the U.S. Supreme Court and the process of selection and tenure of the justices that sit on the Supreme Court are two of those flaws.


  1. Of course nothing is perfect but in it's flaws the Constitution provides for the will of the people to be the ultimate decider.

    They intended for the Court to be slow and hard to change for a reason and I would say it was to make it the less of a political football as possible. The harder it is to change something the less likely it gets used as a political tool year in and year out.

    Not to say the Supreme Court isn't political... of course it is, but via the duly elected President those appointments are made and yes they have long lasting effect and impact, but if the will of the people is such for a long enough period of time, the Supreme Court will reflect that, whichever direction we take... it smooths out the bumps and makes for a smoother ride I'm sure.

  2. btw-Good post man...

  3. (only slightly off topic)
    When you get a moment, please stop by and comment on "Serious Question about Judicial Nominees"... I would like to get your opinion and daves on this one.

  4. Read it and commented. Thanks.