Rob: Yet, that's what happened with Citizens United, isn't it?
Thom: That's exactly right. So from 1789 when we became a country, when the constitution was ratified, until 1803, the Supreme Court never did anything other than be the final appeals court. In 1803, there was a case where -- I can give you the details of the case if you want, but the bottom line is basically, it's called Marbury Vs Madison, and Madison was James Madison. He was the Secretary of State in the Thomas Jefferson administration and Marbury was a guy that James Madison was suppose to make a judge and didn't and he sued. The court, John Marshal was the Chief Justice who was Thomas Jefferson probably number one political enemy, and the court ruled that Jefferson won, Jefferson and Madison won the case and they won the case because the law under which Marbury was saying that he should be entitled to be a judge, was unconstitutional.
Now Jefferson found himself in a terrible bind because on the one hand he won the case which is what he wanted; on the other hand, he freaked out. He wrote, and this I can do from memory, he said, "If this decision is allowed to stand, then indeed has the constitution become a [inaudible]," which is Latin for a suicide pact. "For with this constitution one branch of government and of that, the one which is unelected and unresponsive to the people has taken upon itself the ability to declare what is and is not the law of the land." And so he said, "If this allowed to stand, the constitution has become a thing of wax in the hand of the judiciary and the republic is doomed." That was in 1803, Thomas Jefferson said that.
The violence the ferociousness of Thomas Jefferson's response to that Marbury Vs. Madison case was so intense that for the next 25 years the Chief Justice of the Supreme Court...
Thom: Marshall, thank you. That Judge Marshall was on the Supreme Court, for the remaining 25 years he never again decided a case based on constitutionality. It wasn't until after he died.
So basically, for the first 50 years of this country's existence, the Supreme Court never decided or very rarely decided constitutional issues. Now the Supreme Court does nothing but decide constitutional issues and as I said, this is a power that was not given to the court by the constitution. And arguably, Congress has the right to take this power away from the Supreme Court. Here's an of example of when it was tried.
In 1935, Franklin Roosevelt passed a series of laws including a minimum wage and child labor laws as part of the collection of laws to be called a new deal and the [inaudible 23:26] the right to unionize and the Supreme Court struck them down; said these are unconstitutional because the Supreme Court is very conservative. Most of these guys were over 70, most of them had been put in the court back in the 1910s when they had also struck down child labor laws. There was one in 1914, there was 1917 that they struck down. That one said that children over the age of 7 couldn't and they established the age at which children could work at as 12 including in prostitution.
In "35 when they struck down child labors laws and the union of laws, FDR went crazy and he was like, "What should I do?" So he came up with a scheme in 1935 that, because Congress could regulate the Supreme Court, that they would pass a law, he wrote the legislation and was going to have it introduced into Congress, and he actually would have passed it. There's a fascinating book written about this. Roosevelt kind of screwed up the politics of it, he missed an opportunity but he could have gotten this passed.
He was going to have this law passed that said that, "Any justice over the age of 70 could no longer vote. They would become what's called a Justice of Martyrs and because there was to be 9 votes on a court, then all of the justices over 70 and aggregate would have one vote as Justices of Martyrs." No matter how many Justices of Martyrs there were, the Justices of Martyrs and aggregate would have one vote. Now that's when there were 5 guys who over 70 on the court. Then the president could appoint 4 new people to be on the court. So the court would end up, not with 9 but with 14 but 5 of them would be Justices of Martyrs; they'd only have one vote. So he would be able to get enough people on the court that he could pack the court and have them start ruling that his laws were not unconstitutional.
He tried to that, there was so much blow back from the Republicans who freaked and most Father Coughlin actually, who went nuts; got the whole nation inflamed about this and that is why after the election in 1936, not only did Roosevelt back away from his court packing but that gave the conservatives so much power that he actually scaled back the new deal which is why we slipped back into the depression of 1937.
So that was the one time in the history of this country when the President and the congress actually tried to use Article 3 Section 2 where it says that "The Supreme Court shall operate under regulations as defined by Congress." And frankly, there hasn't been a president or a congress that has had the balls to do it since then. But the constitution, in my opinion, and that of many legal scholars, the best book on this topic is actually written by the Dean of the Stanford Law School, is operating totally independent of the constitution. You have 9 kings here in Washington DC who decide what the law of the land should be, which is absolutely not just not what the founders thought they were doing with the constitution, but it's the opposite of what the founders thought they were doing with the constitution. Constitution starts out with, "We the people," not, "We, 9 guys with lifetime tenure in Washington DC."
Rob: Yeah, you said"
Thom: Have I sufficiently blow your mind?
Rob: Say that again.
Thom: I said have I sufficiently blown your mind?