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OpEdNews Op Eds    H2'ed 8/1/12

The Supreme Court and "Playing Politics:" The Upper Upper House of the U.S. Legislature

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Ah yes, now that the U.S. Supreme Court has upheld President Obama's (very modest) attempt at health policy reform, the Grand Old Tea Party is screaming about "politics" and the Supreme Court. How could Chief Justice Roberts betray them on the "man from Kenya's" health care reform act? (Actually, as a number of observers have pointed out, there is a poison pill in the Commerce Clause in Justice Roberts' supposedly "liberal" majority opinion, but that is another matter.)   At first blush, according to the Right (and they often don't go any farther than first blush) he was just "playing politics" and that was a terrible thing.

Oh really? So you think that the functions of the US Supreme Court really follow the prescripts of Article III, Section 2 of the US Constitution, or should do so.   Well, take a read:

"Section. 2.

"The judicial Power shall extend to all Cases, 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 affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State,--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Well, pretty detailed, and no, the Court has nevertheless not limited itself to following these prescripts for most of its existence. Now it happens that the Right screams about the Court "playing politics" only when they lose one (which historically hasn't happened that often). It also happens that, as we know, the Supreme Court's functions-in-fact go well beyond those stated above. It also happens that the Constitution was amended in fact if not in the law by a series of decisions made under the leadership of a Chief Justice, John Marshall, whose appointment itself was entirely political.

Further, from the time that Marshall wrote his first ruling that claimed that the Court had the power to review and declare "unconstitutional" actions of both the legislative and executive branches of the US government, a power nowhere to be found in the Constitution, it has been political in a major way, as Professor Fred Rodell of the Yale Law School documented in a book published as long ago as 1955 (1).   That publication was well before the Court made several very important decisions, like Roe v. Wade, that the Right likes to scream about as being "political."   But it happens that the most important decisions that it has made since Marshall's time have been entirely political.   They have followed along, not juridical or legal considerations, but with the politics and the political considerations (very important in Roberts' decision in the Affordable Care Act [ACA] case) of the majority of the justices sitting at the time. How did that happen?

In 1776 Thomas Jefferson and John Adams were allies in leading what was to become the American Revolution. But by the time the election of 1800 rolled around they had become bitter political enemies. The founders had not contemplated a two-party system, but by golly, there it was. Jefferson won the election. Attempting to continue his Federalist party's influence/participation/control in/of the successor government, among other things in a political stratagem Adams got his holdover Congress to create a whole set of new courts (2). Then, in the first attempt at "court-packing," just before Jefferson's inauguration on March 4, 1801, he appointed a whole set of Federalist "Midnight" judges and justices. Among them was one William Marbury, a wealthy Federalist from Maryland, appointed to be Justice of the Peace for the District of Columbia (a position that carried with it rather more power than it does now).

Shortly before that time, Adams had appointed his then-Secretary of State (at that time considered the number two power in the government and a political appointee), one John Marshall, as Chief Justice of the Supreme Court. Thus a series of political decisions made by Adams led to the most important amendment to the U.S. Constitution other than XIIIth, XIVth, and XVth, the adoption of which followed the conclusion of the First Civil War. Of course the "Marshall Amendment" was not a written one. It was not approved by two-thirds votes in each House of Congress. Nor was it ratified by three-fourths of the states. Nevertheless, the establishment of the system of "judicial review" by the Supreme Court of Acts of Congress and actions of the Executive Branch was an amendment-in-fact to the Constitution. To repeat, and as you can read for yourself above, there is nothing in Article III which comes close to giving it such powers.

So how did this happen? By two accidents of history. One was that Mr. Marbury really, really, really wanted that appointment. The other was the slowness of communications of the time (slow horse, broken wagon wheel, bad roads?) The appointment notice did not reach him before Jefferson's inauguration. The new President, furious with Adams' machinations, told his new acting Secretary of State, Levi Lincoln, not to deliver the original notice. James Madison (who happened to have been one of the main drafters of the Constitution as well as the Bill of Rights) would soon come in as Secretary of State. When he did not receive his commission, Marbury sued Madison to have it delivered, and so the most important case in the judicial history of the United States, Marbury v. Madison, was created.

Without getting into the nitty-gritty of the case, in his writing for the majority Marshall, a political appointee, made a political decision, although he couched it in judicial terms. He claimed that in order to decide the case, the Court would have to consider the legality of the law which created the position to which Adams had appointed Marbury. He then concluded that if the law were a proper one, Marbury was entitled to the position, despite the technicality of the non-delivery of the notice. BUT, he further concluded that that particular law, the Judiciary Act of 1789, was not in accord with the provisions of Article III of the Constitution and was therefore null and void, that is "unconstitutional." Thus Marbury was NOT entitled to the position, whatever the technicalities of the non-delivery.

Thus the irony of Marbury v. Madison: it unconstitutionally created a power for the Supreme Court that nowhere appears on the Constitution by declaring an Act of Congress unconstitutional. Jefferson complained (1):

"You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.... Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."

Jefferson had it right, even though little did he know what was to come of the establishment of such a "despotic" power. But neither he nor any of his allies went further than that, politically, and the custom/system, whatever you want to call it, was gradually accepted. Under Marshall's leadership, over time, in a series of cases, McColluch v. Maryland being the next most important one, the power of the Supreme Court in this regard was gradually expanded and, among other things, extended to the states.

Thus the Supreme Court's powers grew out of political infighting between Adams and Jefferson, as of course did its political role. Yes, the Court has heard and still hears tons of cases under its powers as spelled out in Article III but we never hear about those.   The cases we do hear about are the political ones: Dred Scott, Plessy v. Ferguson, all of the New Deal decisions pro and con, Brown v. Board of Education, Roe v. Wade, Bush v. Gore, Citizens United, and etc. Just looking at the politics of the membership of the Court for any of the major cases over time tells you how they went.

Was Chief Justice John Roberts taking politics into account with his decision for the ACA case (and he apparently changed his mind late in the game on it)? You betcha. Was his namesake Justice Owen Roberts (no relation) taking politics into account in 1938 when, at the height of the Second Court-Packing controversy, FDR's, he suddenly switched sides from anti-New Deal to pro- and all of a sudden a whole bunch of New Deal programs became constitutional? You betcha! The first Roberts' switch was immediately called "the switch in time that saved nine." One wonders how long it will be before the second Roberts' switch is so called as well. When the Court rules an act of Congress or an action of the Executive Branch unconstitutional it is acting politically. Certainly in the former case it is acting as the Upper Upper House of the U.S. legislature, in the latter simply as an extra-Constitutional umpire: "You're outta here!"

The composition of the Court over time is the result of the political process of Presidential and Senatorial elections. For most of our history we have been ruled by right-wing or "center-right" Presidents who have made the bulk of the Supreme Court appointments. It is no mystery why most Supreme Court decisions, except during very limited periods of time, have been reactionary ones. During those relatively short historical periods when the Court has had a liberal majority and has made liberal political decisions, the Right has screamed "judicial self-restraint" and "states' rights." But what they are really concerned about is the politics of those decisions.

Consider, for example, Bush v. Gore. In it the Court over-ruled the Supreme Court of the State of Florida on the matter of how to (re-)count votes in the state. One would think that that would be a matter of "states' rights" and that the Court should "restrain itself." But no such screams from the Right were heard. That's because the screams of the Right have nothing to do with the process, as much as they would like to convince us that it does. They have everything to do with the political nature of decisions they don't like. But now, all of a sudden with a firm right-wing majority on the Court (except for this one decision, and the ACA is hardly revolutionary) one of the leading reactionary voices in the country, George Will, is calling for "judicial activism" to overturn a bunch of those occasional liberal precedents that go back a century (3), just as did happen in Citizens United.

And so, this Roberts' decision was made on narrow legal grounds. It was made for political reasons having to do with an attempt to maintain the legitimacy of the Court for a whole bunch of reactionary decisions that it will be making in the future (always 5-4, one can be virtually sure --- and Roberts will not be on the liberal side for a very long time to come).   They will include over-turning Roe v. Wade when it can get its mitts on that case. It is just another in a long line of such decisions made by an institution whose powers grew, not out of the Constitution, but out of a clash between the first two political parties of the United States. One must wonder how US history might have been different if Mr. Marbury had not wanted that appointment so badly or if that notice of his appointment had gotten through to him before March 4, 1801.



1. Rodell, Fred, Nine Men: A Political History of the Supreme Court of the United States from 1790 to 1955, New York: Random House, 1955.

2. "Marbury v. Madison," http://en.wikipedia.org/wiki/Marbury_v._Madison

3. "George Will to GOP: Embrace judicial activism," http://www.rgj.com/article/20120618/COL01/306180006

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Steven Jonas, MD, MPH, MS is a Professor Emeritus of Preventive Medicine at StonyBrookMedicine (NY). As well as having been a regular political columnist on several national websites for over 20 years, he is the author/co-author/editor/co-editor of 37 books Currently, on the columns side, in addition to his position on OpEdNews as a Trusted Author, he is a regular contributor to From The G-Man.  In the past he has been a contributor to, among other publications, The Greanville PostThe Planetary Movement, and Buzzflash.com.  He was also a triathlete for 37 seasons, doing over 250 multi-sport races.  Among his 37 books (from the late 1970s, mainly in the health, sports, and health care organization fields) are, on politics: The 15% Solution: How the Republican Religious Right Took Control of the U.S., 1981-2022; A Futuristic Novel (originally published 1996; the 3rd version was published by Trepper & Katz Impact Books, Punto Press Publishing, 2013, Brewster, NY, sadly beginning to come true, advertised on OpEdNews and available on  (more...)

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