In a letter to Abigail Adams in 1804, President Thomas Jefferson wrote that the Constitution meant its two branches (legislative and executive) should be checks on each other. He then warned: “The opinion which gives to the judges the right to decide what laws are constitutional, not only for themselves in their own sphere of action, but for the legislature and executive also in their spheres, would make the judiciary a despotic branch.” (1)
Chief Justice John Marshall had just ruled against Jefferson in Marbury v Madison (1803), a landmark US Supreme Court case that not only established the principle of judicial review and interpreting the Constitution, but gave power to the court to strike down laws, statutes, and some government actions established by both the legislative and executive.
The Supreme Court had just turned into what many framers of the Constitution feared: a despotic branch.
Article III is the shortest, and least specific, of the constitutional provision establishing the Supreme Court. The framers spent far less time-and debate-on the judiciary than Congress or the president since it was to serve only in an advisory capacity by interpreting laws and returning them to the legislative and executive where they would be decided. Indeed, power was to remain in an elected branch (Congress) and electoral branch (presidency), not with six appointed judges.
This changed in 1789 with the Judiciary Act. President George Washington, Vice President John Adams, and most of the Senate were federalists who favored a strong, authoritarian government. Consequently, they nominated and appointed like-minded federalist and authoritarian judges to serve on the court.
In 1803, the court simply decided to seize more power than the Constitution had intended, making it an unelected, super-legislative branch of lifetime judges.
The Supreme Court, moreover, did not explicitly declare itself to be the final authority on the meaning of the Constitution until Cooper v. Aaron (1958). Like law professor Cass Sunstein said: “The Constitution does not mean only what the judges say it means…Its meaning to Congress, the President, state government, and citizens in general has been more important than its meaning within the narrow confines of the Supreme Court building.” (2)
Wrong Side of History
The power of unelected judges to overturn laws in a democracy again has taken center stage with President Donald Trump’s nomination of Amy Coney Barret and a Republican dominated Senate that plans to appoint her. While some court decisions may have been on the right side of history, the court has a history of being wrong. Plessey v. Ferguson legalized segregation. Santa Clara v. Southern Pacific ruled corporations were individuals with rights stronger than any American.
The real argument Americans should be having about the Supreme Court then is its despotism and weaponization.
To be sure, nine appointed judges for life should have never decided the 2000 presidential election in Bush v. Gore, specifically since that power is reserved solely for the House of Representatives. In Citizens United v FEC, the court legalized bribery and electioneering votes by equating corporate donations to campaigns as a form of free speech.
With all eyes on Barrett, the Supreme Court just announced it will hear two cases that could eviscerate the right to be free from racial and disability discrimination in voting. The cases involve two Arizona laws restricting the right to vote. One law requires ballots cast in the wrong location to be tossed out, while the other prevents individuals from delivering another person’s absentee ballot to the election’s office. Barrett has a history of ruling against voting rights. (3)
Another fear is how Barrett consistently favored corporations ever ready to cheat workers out of overtime pay and other hard-earned benefits.
Along with destroying labor unions and making it increasingly difficult for Americans to organize for union members to exercise long-held rights, as a judge on the US Court of Appeals for the 7th Circuit she ruled against workers that sued a transportation company that refused to pay them for extra hours they logged. (4)
In another case, Barrett ruled against delivery drivers who were fighting to secure labor rights for themselves and other gig workers. The company had purposely misclassified them as contractors instead of employees-and refused to pay them minimum wages and other benefits. Safety conditions also were an issue. Trump may have nominated her to ensure his corporation (Trump Organization) and others continue anti-worker policies without any recourse.
Weaponizing the Court
There also is worry how Trump could weaponize the Supreme Court and Barrett. There are certainly many realistic scenarios where the Court could get involved to resolve the outcome in favor of the president, and she has refused to recuse herself. In fact, and after it was found she had ruled in an opinion that there was no evidence using the n-word “created a hostile or abusive working environment” (5), Barrett gave an ambiguous answer when asked about the president’s threat to unilaterally delay the election, only saying she would keep an “open mind.” (6)
What Alexander Hamilton referred to as “the least dangerous” branch has become the most threatening, especially if it hands President Trump and the Republicans another election.
The Supreme Court was never meant to be the final authority, but only a court that would give guidance and offer suggestions on what they thought the Constitution meant. It was then to be decided by the legislative and executive branches consisting of elected officials. In fact, Article III makes no mention of judicial review or ruling on laws as constitutional or unconstitutional.
But like other authoritarian states, democracy dies in broad daylight when despotic individuals and groups interpret the constitution loosely for their own means and ends.