On January 2, 1801, John Jay wrote a letter to President John Adams explaining why he would not accept the commission to be chief justice of the Supreme Court. Jay had been the country’s first Supreme Court Chief Justice, but in his letter, he explains to President Adams that the Supreme Court did not have the “energy, weight, and dignity” to be impactful on public policy.
Jay quickly understood that while the position of justice of the Supreme Court is prestigious, it is inconsequential in terms of public policy. While the media and the nation are captivated by the potential impact of a Supreme Court Justice Kavanaugh, it was never intended for a Supreme Court justice to have a significant impact on national policy.
Article 3 Powers
Article 3 Section 2 of the Constitution explains the scope of the judicial powers of the Supreme Court as hearing only certain cases and controversies. This distinction renders the court a very minor role in terms of policy decisions.
First, an actual case must be brought to the court. The court does not deal with hypothetical or theoretical questions. From the very outset, this explains the relative impotence of the court in relation to the other branches.
The courts do not possess an automatic or clear mechanism to make any decision on actions of the other branches. The only time the court can decide a case involving the action of another branch is if a controversy occurs. The court itself reiterated this point in 1911 when in Muskrat v United States the court refused to allow a case to be heard because even though the United States was named as a defendant, the litigants didn’t present an actual controversy between adverse parties.
As Daniel Horowitz from Conservative Review recently pointed out, if the courts were meant to have broad power in regards to legislation, then the founders would have created an avenue for the courts to involve themselves directly rather than wait for a controversy to occur.
A modern view theorizes the founders intended for the courts to have a critical veto vote on legislation, yet the court may have to wait years or even decades to exercise such a power on a dangerous piece of legislation. This description of the courts is illogical and clearly not the role our founders outlined for the judicial branch.
Neither Force Nor Will
We have further explanation of the limited power of the judiciary in Alexander Hamilton’s description in Federalist 78. He states that the judiciary is “beyond comparison the weakest of the three departments of power.” He also makes the point that the courts “have neither FORCE nor WILL, but merely judgment.”
Hamilton is making the argument that a check on the court’s power must rely upon the other two branches to carry out its rulings, and those branches wouldn’t enforce their decisions if they operated outside their constitutional authority.
A great example of judicial overreach is the use of nationwide injunctions. A nationwide Policy occurs when a court bars the federal government from enforcing a law against any individual, not just the litigants of the case before them. As Jeff Sessions recently mentioned there were no nationwide injunctions for the first 150 years of American history. Fast forward to 2018 and President Trump has already faced 22 nationwide injunctions.
While the largely misunderstood case Marbury v Madison is celebrated as an appropriate use of judicial review, it is important to note the next case in which the Supreme Court declared a law passed by the legislature as unconstitutional had disastrous results.
When the Supreme Court declared the Missouri Compromise to be unconstitutional in Dred Scott v Sandford in 1857, it brought the country closer to all-out war. The Dred Scott ruling forced the American people into a treacherous ultimatum.
Freeport Question
Abraham Lincoln asked Stephen Douglass in their debate in Freeport, Illinois, in 1858 what became known as the Freeport Question: “Do you hold, and if elected President of the United States, would you carry out, the doctrine that the people of a territory, before it becomes a state, have the power, under the Federal Constitution, and notwithstanding the Dred Scott decision, to prohibit or exclude slavery therefrom?”
Lincoln knew this question would be difficult for Douglass to answer because in affirming the Supreme Court ruling (which Douglass had been doing on the campaign trail) he would be telling his home state of Illinois the Supreme Court had taken away their ability to ban slavery. This question gets to the core problem of judicial supremacy: when the courts decide political questions they are undermining the principle of popular sovereignty.
One of our founding principles is that through a body of representatives, our political questions would be decided. Courts full of unelected judges were never meant to make decisions on broad policy.
As Thomas Jefferson wrote to Abigail Adams, “You seem to think it devolved on the judges to decide the validity of the sedition law, but nothing in the Constitution has given them a right to decide for the Executive, more than to the Executive to decide for them. Both magistracies are equally independent in the sphere of action assigned to them.”
If Congress and the executive branch do not defend their power to determine the constitutionality of their own actions, states and citizens will face the “Freeport Question” for themselves. Will we continue to abandon the principle of popular sovereignty in order to abide by unconstitutional court rulings?
Ryan Walters teaches history and government courses in McAlester, Oklahoma. He can be reached by email at ryanwalters37@gmail.com or on Twitter.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.