Consider an extreme and unlikely example, but nonetheless illustrative: Suppose the Supremes were to rule (five to four, of course), that "The United States is a Christian nation," and that henceforth, only confessing Christians could hold public office. Such a ruling would, of course, directly contradict Article Six and the First Amendment to the Constitution. But such considerations have not constrained this Supreme Court or its predecessor. The Constitution also stipulates that the states are to determine the electors in a presidential election. (Article 2, Section 1) In Bush v. Gore, the Supremes ignored that when they brushed aside the Florida Supreme Court's ruling that a statewide recount of the vote must continue. The same court in the same decision, set aside the rule of stare decisis (precedent) when it wrote that "Our consideration is limited to the present circumstances."
Suppose further that in 2008 a Democratic President and an overwhelmingly Democratic Congress is elected. The Congress then proceeds to enact, and the President to sign, legislation depriving corporations of "personhood" status, instituting single-payer medical coverage, reforming campaign finance, etc. – in short, repealing the abuses of the Bush regime and the GOP Congress and instituting progressive reforms. And then, one by one, all these are voided by the Supreme Court, with rulings that are flimsy at best, and more often plainly absurd, and none of them open to appeal. In short: a nullification by one branch of government of the remaining two branches.
The Constitution of the United States provides checks and balances, to prevent unwarranted exercise of power by branches of the federal government. The Congress is restrained by the President's veto power, and the President is kept in check by the Congressional option of impeachment and removal from office. Both the executive and the legislative branches are constrained by Supreme Court's "judicial review" of enacted laws and executive orders. ("Judicial review," however, is not specified in the Constitution. It was established in 1803 in the landmark case, Marbury v. Madison).
While specifying "checks and balances" against the President and the Congress, the framers of the Constitution failed to likewise constrain the powers of the Supreme Court, other than to allow impeachment if the judges failed to "hold their offices during good behavior," a vexing and vague condition, to say the least. (Article 3, Section 1). All federal officers take an oath to "support the Constitution" (Article 6). But that requirement raises a troubling paradox: How is the Court, or a Justice of the Court, or a ruling of the Court, to be judged to violate the Constitution, when the Court itself is the final interpreter of the Constitution?
Such a time is upon us now, soon to be followed by a desperate search for a remedy.
Facing judiciary tyranny, what is the next President, the Congress, and the vast majority of the voters that elected them, to do?
Testifying under oath before the Senate Judiciary Committee, Roberts and Alito both promised to decide cases as "umpires," without "agendas" or "any preferred outcome in any particular case." And they said they would be guided by precedent – stare decisis. They lied, of course, as is evident in their recent decisions. Unfortunately, since their rulings are open to endless interpretation, charges of perjury will likely lead nowhere.
In view of their few rulings to date (and I fear, far worse to come), it appears that the five controlling justices (Roberts, Alito, Kennedy, Scalia and Thomas) do not see themselves as the guardians of established law and the Constitution. They are activists, championing the agenda of the mega-corporations and the religious right, at the expense of the rights of minorities, the poor, and ordinary individual citizens. They are, in short, the judicial exemplars of Bush/Cheney Inc.
And nothing, it seems, can stop them. Least of all the Democrats in the Congress as now constituted, who, after all, allowed the confirmation of Roberts and Alito.
Are there no remedies?
Impeachment due to perjury. Clarence Thomas told the Judiciary Committee that he never gave an idle thought to Rowe v. Wade. He also testified that he did not sexually harrass Anita Hill. Might there not still be eyewitness, written, or other testimony and evidence proving that Thomas committed perjury? This approach is not very promising. The evidence is cold, and perhaps Thomas is protected by the statue of limitations. (Lawyers, please help me with this). The Roberts and Alito lies under oath are, as noted above, "open to interpretation," and thus can not overcome the "beyond reasonable doubt" standard.
The "Good Behavior" condition. It is quite possible that a $50 million Ken Starr type investigation would uncover some dark secrets in the lives of "the regressive five" on the court. After all, we are all sinners. But the country can ill afford still more politics of personal destruction. There are two edges to this sword, which can cut away any and all of the comity that is pre-requisite to productive political activity. Furthermore, the "good behavior" condition likely applies to conduct while on the bench, and there is no evidence that any of the Five have "behaved badly" in the ordinary sense during their terms of office. They have "behaved badly" in their recent rulings, but this is a judicial rather than a moral judgment, and surely not what the framers had in mind by their "good behavior" condition.