Disorder in the Supreme Court

"[The Judicial Branch] may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

—Alexander Hamilton, Federalist No. 78, 1788

Hamilton must have envisioned a judicial branch that acted judiciously. If he had only known what was in store for the country, I suspect he’d have had a completely different thing to say about the ratification of the U.S. Constitution.

Those who have read said document know that nowhere in Article 3, which addresses the judiciary, does it mention what the judicial branch of government is actually supposed to do.

It wasn’t until 1803 that Supreme Court Chief Justice John Marshall created the power of “judicial review.”

Three years earlier, Secretary of State John Marshall failed to act in his official capacity after his party lost an election when he conveniently failed to deliver a presidential appointment to his long-time friend William Marbury. Marbury ultimately and unsuccessfully sued for the position. Marshall’s dereliction of duty set the stage for what was to occur in the courthouses of this country.

Knowing he was to be the Supreme Court’s chief justice, Marshall placed into motion events that he knew he’d be in a position to resolve when the case eventually reached him. (And he did so by effectively hosing his friend.)

Voila, the very first act of judicial activism. Things have gone downhill for the republic ever since.

This is apparently way cool for liberals who, because they can’t get their inane agenda passed legislatively, have to do it through the courts. (But I suppose the ends justify the means. Why else do Senate Democrats play childish procedural games to hold up President Bush’s judicial appointments?)

That situation dovetails into the most pervasive argument I’ve heard in favor of judges “legislating” from the bench: The Constitution is a “living document” and should be subject to change.

Granted, the founding fathers intended for the Constitution to be subject to change, but that’s also why they included a process to amend it. That process, I might add, has been successfully followed 27 times, and none of them required the blessings or intervention of the almighty judiciary.

Think “interpretation” of constitutional issues is hunky dory?

Perhaps a couple of choice historical examples of judicial activism are in order:

In 1917, the Supreme Court upheld a congressional act criminalizing free speech in wartime despite the fact the First Amendment specifically states: Congress shall pass no law … abridging freedom of speech (Schenck v. U.S.).

In 1944, the Supreme Court ruled that the systematic seizure and confinement of those of Japanese ancestry to internment camps was just fine (Korematsu v. U.S.).

And at the state court level, we have these pathetic examples:

In 2001, the Nevada Supreme Court decided that a provision in the Nevada Constitution requiring a two-thirds majority to raise taxes by the state legislature was merely a “procedural rule” and should be ignored.

Also in 2001, the Massachusetts State Supreme Court discovered a clause in the state constitution bestowing a right to same-gender marriage where none had previously been seen in the document’s 250-odd years.

Perhaps this activism is not the fault of the judiciary as a whole. But it’s what happens, as ABC’s George Will so poignantly notes, “when judicial appointments are filled with injudicious people"?