Supreme Court’s Mythical Power

Bob Jones
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Wednesday - February 03, 2010
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Some lawyers are saying the Supreme Court would kill healthcare reform because Congress doesn’t have the power to require all of us to be insured.

But, hey, nothing in the Constitution gives the Supreme Court authority to override Congress or tell the president what he cannot do, either, but it does both. At least Congress under Article 1 has the power to provide for the general welfare.

All the Constitution says about federal courts is: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

But in 1803, the Supreme Court decided it had the power of judicial review over both federal and state laws that it sensed might violate the Constitution. It seems that few people stood up to shout “no!” Most felt it created a system of checks and balances, even though there was no provision for that in the Constitution.


That’s what eventually led to today’s argument that the High Court sometimes makes law by the way it interprets law. President Obama said as much in his State of the Union speech last week, calling the Supremes “activists” for their ruling allowing corporations to make unlimited political contributions.

Great Britain doesn’t allow its courts to set aside laws passed by Parliament. Parliament there is sovereign because it speaks for the people. Maybe our Founders intended Congress to be sovereign, too, but that got lost in the Marbury v. Madison case in which our Court decided they can strike down anything they hold to be not constitutional.

The main reason this is noteworthy is that, by strict reading of the Constitution, the High Court should not be able to tell a president “you can’t do that.” Should not, but does, and all presidents have obeyed - not always happily, but not willing to cause a constitutional crisis, either.

Congress probably could impeach a president for defying a court order. We’ve come to believe there’s a moral and legal obligation of the president to obey. We’d be shocked if one said no.

Franklin D. Roosevelt almost did in 1935, but the court then held in his favor on a bonds issue. Harry Truman wanted to when his seizure of striking steel mills during the Korean War was held unconstitutional, but he thought about it a couple of days and said, “I have no ambition to be a dictator.”

It’s fascinating, though, how law develops even when there’s no law. And when I read various news articles about all the powers that Article III gives the Supreme Court, I find myself shouting, “No, it doesn’t!!”

We shouldn’t be too unhappy with the way things turned out. We’d probably not have had school desegregation or interracial marriage so early without the Supreme Court taking some powers unto itself 206 years ago.

And as Alexander Hamilton wrote: “The judiciary will always be the least dangerous to the political rights of the Constitution because it will be least in a capacity to annoy or injure them. The executive holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has neither FORCE nor WILL, but merely judgment.”

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