Should We Place Checks and Balances on the Supreme Court?

By  Ronald Trowbridge

I published a paper recently asserting that the constitutionality of the individual mandate of the Affordable Health Care Act would be a close call, though I opined at the conclusion of the impartial analysis that the mandate would likely be ruled unconstitutional by a 5-to-4 Supreme Court vote. I later talked with Texas’s Attorney General Greg Abbott, saying, “It all depends on how swing voter Anthony Kennedy votes”—to which Abbott responded, “If we get Kennedy, we’ve got it made.”

Then it struck me poignantly, how in Heaven’s name did this country ever get in such a predicament that something so enormous, so all-controlling, so inordinately expensive could be finally determined by one person—in a country of over 300 million people?

The U. S. Supreme Court is virtually imperial.  While checks and balances limit the power of the Executive and Legislative branches, nothing limits the power of the Supreme Court.

Former federal appellate judge Robert Bork was so troubled by this unchecked, even political, power that he proposed a constitutional amendment to make “any federal or state court decision subject to being overruled by a majority of votes of each House of Congress.”

The Supreme Court is more a political body than a body of disinterested arbiters.  Republican presidents appoint conservatives to the bench; Democratic presidents, liberals.  These appointees may be subtle, even inchoate, about their political dispositions, but they nonetheless render philosophical—that is, political—judgments.

The Wall Street Journal recently observed that the Westboro free-speech case “managed the rare feat of uniting the Court’s liberal and conservative wings.”  The justices are political—the elephant in the room we choose not to see.

E. B. White put it aptly:  “I have never seen a piece of writing, political or non political, that doesn’t have a slant.  It slants the way a writer leans, and no man is born perpendicular.”  Not even judges.

Judges will, of course, respond that they do not permit their personal views to interfere with their impartial rulings.  Not fully true.  I worked for or with Chief Justice Warren Burger for nine years.  He told me that he did not let his personal views influence his court rulings.  I knew otherwise.  In Mechlenburg he voted for cross-district busing of school children.  He told me that, apart from any other group, African-Americans deserved “special treatment” because they “were brought to this country against their will.”

Chief Justice William Rehnquist let the will of the majority govern his vote.  In his first vote on Miranda, he rejected Miranda rights.  In his second vote much later, he supported Miranda rights, arguing that they were now “part of our culture.”

This unchecked court power began with John Marshall, in Marbury v. Madison, where the Supreme Court for the first time ruled an act of Congress unconstitutional.  In the Supreme Court building today is an enormous statue of Marshall.  Of course.  In the Chief Justice’s dining room are portraits of Marbury and Madison.  Of course.

Today, five federal District judges have ruled on the Affordable Health Care Act.  The three judges  appointed by Democratic presidents have ruled the act constitutional.  The two judges appointed by Republican presidents have ruled it unconstitutional.  Of course.  As Roy Cohn is alleged to have said, “Don’t tell me what the laws are; tell me who the judges are.”

Randy Barnett, a professor of constitutional law at Georgetown University, has recommended  a “Federalism Amendment”—which lays out the process of implementing checks and balances against the unlimited power of Congress and the courts.
 

The Texas legislature should at least examine Barnett’s proposal, in a time of renewed emphasis on states’ rights.