According to two well-known "Washington lawyers" (one of whom is married to Kelly Anne Conway --- man the pillow talk in that household must be interesting), Trump's (sorry I find myself hard-pressed to put the title "President" before his name) pick for Acting Attorney General, in the aftermath of the virtual firing of Jeff Sessions, is "unconstitutional." The primary reason for this is that he has never held a Senate-confirmed post of any kind. (A suit from Maryland is pursuing this avenue of challenge.) Then there is also the well-known matter of Whitaker's pre-judgement in the legitimacy of the Mueller investigation, and its breadth.
And then there is Mr. Whitaker's position on the subject of this column: the role of the United States Supreme Court in the review of actions of both the Federal and State governments to determine their Constitutionality. This role of the Supreme Court, which has weighed heavily in the matter of the operations of the Federal government especially since the Dred Scott decision of 1857 which held that former slaves, regardless of where they lived, were not human beings but were simply property, is not to be found in the Constitution. Indeed, in Article III of the Constitution which defines the Supreme Court and its duties there is no direct provision that gives it the power to review decisions of the other two Branches and declare them "Unconstitutional."
Rather it was established in a series of decisions of the Supreme Court itself in the early 19th century. Indeed, the third Chief Justice of the United States, John Marshall, made it up, not out of whole cloth but through a series of "if/then" propositions that not everyone at the time, certainly not the Jeffersonians, agreed with. The most famous of these cases was "Marbury v. Madison." As it happens, the new Acting Attorney General, who has cases that may well come before the Supreme Court for a ruling on their constitutionality, supports a position taken by an apparently fairly small number of right-wing lawyers and legal academics that Marbury v. Madison was wrongly decided, and thus Supreme Court's Constitutionality Review power should not exist.
My 1996 book "The 15% Solution: How the Republican Religious Right Took Control of the U.S., 1981-2022" is based on what the Republican Party and the Religious Right would do if they ever took the kind of power they had under the first two years of the Trump Administration. In the book, they move the U.S. government steadily rightward, eventually establishing an apartheid state covering all of the North American continent. Along the way, to facilitate their slow-motion fascist revolution, in "2001" a Chief Justice "Steps" (Scalia, get it?) writes, for the then Right-Wing majority of the Court, an opinion that removes from it the power of Judicial Review. This is the position that Mr. Whitaker adhered, at least at some point in his legal career. Here is that totally fictional decision, in summary form.
Chapter Five 2003: Anderson v. Board of Education
Summary of the Decision (Supreme Court Bulletin)
"Supreme Court Has No Constitutional Review Authority"
Anderson v. Board of Education, Cer tiorari to United States Court of Ap peals for the Third Circuit.
No. 101"'11. Argued October 31, 2002--Decided May 13, 2003.
Petitioner, a parent acting on behalf of her minor child, brought a civil ac tion against the Board of Education of the State of New Jersey seek ing to pre vent it from enforcing a law passed dur ing the 2001 ses sion of the State Legis lature mandating voluntary prayer in the public schools of that state. Both the trial and appeals courts in the state of New Jersey found for the respondent. Petitioner appealed to the Su preme Court. With out arguing the merits, respon dent filed a brief claiming that under 28 U.S.C., Chap. 81, para. 1260, gener ally known as the "Helms Amend ment ," the U.S. Su preme Court did not have ju risdiction in this case.
Held: Under the cited section of the U.S. Code, the Supreme Court has no jurisdiction to review appeals of state school prayer statutes. Fur ther, there can be found in the Constitution of the United States no grant of authority to the Supreme Court to review the action of any other branch of the Federal Government or any branch of any state government for its "constitutionality."
(a) Article 3, Section 2 of the Constitution defines the authority of the Federal judicial power: "The judicial power shall extend to all cas es, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to all cases affect ing ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to contro versies to which the United States shall be a party; to controversies between two or more states."
(b) It is clear that the plain language of this article supports the hold ing of the Court. Under the Doctrine of Original Intent, by which the Constitution should always be interpreted, it is clear that the Consti tution means only what it says, not what any individual judge or group of judges collectively think that it ought to say or would like it to say. It thus be comes clear that the series of decisions handed down by Chief Justice John Marshall and his colleagues in the first quarter of the 19th century which established the theory of Supreme Court "judicial re view" for "constitu tionality" were based on faulty legal rea soning.
(c) In the first of these cases, Marbury v. Madison, the Court inval i dated an "Act of Congress giving the Court jurisdiction to hear origi nal appli cations for writs of mandamus, because in such cases the Con stitu tion limits the Su preme Court to appellate jurisdiction" (Cox). While that opin ion may be valid, nowhere does the Constitution give the Court the power to apply it with the force of law. Rather, as in Great Britain, the legisla tive branch, through the will of the majority, is the only ap propriate judge of the "constitutionality" of its own acts. In his written opinion, the Chief Justice stated that if "the courts lacked the power to give sting to constitu tional safeguards . . . , the Legisla tive and Execu tive Branches might too often override the Constitution" (Cox). That may well be true. But if the Founding Fathers had wanted to give the Federal judiciary that "protec tive" function, they would have clearly writ ten it into the Constitu tion. Chief Justice Marshall was reading into the Consti tution words that he wanted to see -- but were not there.
(d) In Martin v. Hunter's Lessee, Justice Joseph Story expanded the Su preme Court's review powers to include decisions made by the State courts (Cox). Like Chief Justice Marshall, Justice Story was reading into Article 3, Section 2 of the Constitution what he wanted to see there. In Cohens v. Vir ginia Chief Justice Marshall affirmed Justice Story's con clu sion in Martin, using the same faulty reasoning (Cox).