There has been a lot of talk this week about how the Democrats should handle the GOP’s intention to vote on a Supreme Court justice before the next inauguration date. I have read some interesting material, for example, on the value of increasing the number of justices on the Court to eighteen, or even more. But the argument that appeals to me most is that of simply ignoring the Supreme Court entirely.
Ryan Cooper in the (centrist) The Week presents a good case for eliminating judicial review altogether if the Democrats gain the White House and Senate.
“The weird thing about judicial “originalism” is that the explicit principle of judicial review is nowhere to be found in the Constitution. All of that document’s stipulations on how the courts are to be constructed are contained in one single sentence in Article III: “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.” Actual judicial review was a product of a cynical power grab from Chief Justice John Marshall, who simply asserted out of nothing in Marbury vs. Madison that the court could overturn legislation.”
Cooper reminds us that Jefferson hated judicial review, and that Abraham Lincoln ignored the Court’s ruling in the Dred Scott and habeas corpus cases. He also wants us to recognize that our nostalgia for the Warren Court and its liberal decisions is based on an aberration.
“[C]onsidered in context, the court has been a bulwark of racism, reaction, and capitalist tyranny for almost its entire existence. Rulings enshrining slavery and Jim Crow, protecting racist murderers, banning basically all public health or labor regulation, or legalizing corruption far outweigh the brief and (not terribly effective) period of Warren court decisions.”
He writes that a very small number of other countries have Constitutional Courts but
“[i]n no other developed democracy does basically every piece of major legislation have to run a years-long gauntlet of tendentious lawsuits trying to get through the courts what parties could not get through the legislature.”
Cooper justifies this move because, “when confronted with that kind of ruthless usurpation of America’s republican values, one should be ready to respond in kind.”
I believe Cooper and I get to agree on this line of action from different perspectives. For him it seems to be about efficiency in reversing actions taken by the current President. For me, it returns more power back to Congress which is — far more than the Court — subject to the support of the population, thus imbuing each individual with a tiny bit more power than they had before.