Kavanaugh and the powers of the Supreme Court

Tom Bantley

thbantley@ursinus.edu

Brett Kavanaugh’s appointment has become another debacle that has further polarized an already divided nation. While Kavanaugh’s nomination pitted the popular #MeToo movement against the power of the Republican Party, another aspect of Kavanaugh’s past has been largely overlooked: his controversial judicial philosophy, especially with regards to presidential power, reproductive rights, privacy laws, and domestic surveillance.

The controversy over Kavanaugh’s beliefs and character is due to the high-stakes nature of Supreme Court nominations and the gargantuan power that the court holds over American society. The judges are appointed for life and they have the authority to interpret the Constitution and federal laws. But the Supreme Court of the United States is not an impartial judge of the law. It is a political institution. This conundrum exists because of the problematic policy of judicial review. Judicial review, and the powers of the court more broadly, must be reexamined going forward in order to make the United States a more perfect union.

Judicial review is the legal principle that the Supreme Court has the right to review and strike down actions made by the legislative and executive branches. The concept of judicial review has been an essential part of the American system of government since it became an established power of the Supreme Court in 1803’s landmark decision Marbury v. Madison. However, Judicial review has been a detriment to American freedom.

In American history, we have seen the incredible damage that the Supreme Court’s excessive power has done to the United States. For example, in 2000’s Bush v Gore, the Court trampled over Florida’s rights and chose Bush as the president of the United States. Next, in 2010’s Citizens United v. Federal Election Commission, the Court ruled that corporations were people so they could effectively buy elections, thus ushering in an age of banana republic-style corruption. In 1944’s Korematsu v. United States, the Court ruled that Americans of Japanese heritage can be imprisoned in internment camps because individual rights can be suppressed during wartime, earning the notorious case universal condemnation. Also, in 1856’s Dred Scott v. Sandford, the Court ruled that Black people are not human beings. While there are examples of good decisions, such as Brown v. Board of Education, there are more examples of horrible decisions. It is apparent that the Court has a poor track record when it comes to defending liberty and decency.

Nowhere in the Constitution of the United States is the Supreme Court given the power to strike down or create law. For the six years after the Constitution was signed, there was no judicial review until the Supreme Court granted itself that power. During this period, the Supreme Court was the final appeals court of the United States and would handle legal matters between citizens of different states and US citizens versus citizens of other nations. Thomas Jefferson, who was petrified by the newfound power of the Supreme Court, stated that “the opinion which gives to the judges the right to decide what laws are constitutional, and what not, 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.”

Jefferson also said, to Virginia Supreme Court Justice Spencer Roane, “If the judiciary is the last resort in relation to the other departments of the government…then indeed is our Constitution a complete felo de se (suicide pact)… The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary.” The solution to the issue of the Supreme Court’s rampant unaccountable power would be a series of dramatic reforms. First, smaller reforms such as term limits, more public access to Court meetings, more public appearances, a higher code of ethics, and tighter regulations around conflicts of interests would be helpful. However, the Congress must deal with the issue of the Court’s power directly. Congress must act to curb judicial review by using the power endowed to the Congress in Article 3, Section 2 to regulate what the Supreme Court can adjudicate on.

However, some would argue that we need the Court to check the power of the Federal Government. If an incumbent administration acts in ways that defiles the Constitution, it is the responsibility of the opposition to expose the abuse and for the people to vote out of office the incumbents through the democratic process. It is up to the people to make the government better. No one will do it for them. Brett Kavanaugh is part of a bigger problem in American government and if anybody wants to do something about it then the people must act, through their representatives, to change the Supreme Court.