Where The Courts Started and Where They Ended Up

Politics is inherently divisive, and opinions along with personal beliefs are absolutely necessary. However, the one place we should feel safe within our government is the judiciary. We should always count on the judiciary to uphold the law. The role of the judiciary is not to engage in politics or consider moralizing from the bench. Today this nation faces the potential dilemma of the judiciary becoming an independent, final authority in the lives of Americans rather than just upholding the law.
Our government consists of three branches: the Legislative Branch passes bills with the intention of them becoming law, the Executive Branch signs or vetoes the bills the Legislative Branch passes (among many other responsibilities), and the Judicial Branch is supposed to uphold the law. Thomas Jefferson, our third President and author of the Declaration of Independence, clearly stated, “The leading principle of our Constitution is the independence of the Legislature, Executive and Judiciary of each other.” The courts today are far from what Thomas Jefferson envisioned when he spoke about the separation of powers.
In 1787, a debate arose between two political factions, the Federalists and Anti- Federalists, as to what the role of the Supreme Court should be. Leading Federalist Alexander Hamilton felt “the judiciary… will be the least dangerous branch of the new government;” whereas, the Anti- Federalists felt “we are more in danger of sowing the seeds of arbitrary government in this department than any other.”
Today, one can view the Judiciary as the most powerful branch of government. What has led to this result is exactly what Jefferson predicted.
In 1803, when the Supreme Court decided Marbury v. Madison it took the bold step of declaring the Judiciary the final decision maker for all three branches of our government. One can argue that the Marbury v. Madison decision empowered the Supreme Court itself as the supreme branch. Jefferson was opposed to the court’s ruling, “because he thought it violated the principle of separation of powers.”.
When referencing this move Jefferson stated, “The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.”
Jefferson’s remark indicated a keen understanding of what was to come: he was not too far off the mark. The United States Supreme Court later took center stage and decided landmark cases that changed the course of this nation forever.
In 1896 the Court decided Plessy v. Ferguson, a case that upheld segregation and coined the famous phrase, “separate but equal.” However, half a century later Chief Justice Earl Warren and the Supreme Court wrote a unanimous opinion in Brown v. Board of Education that the “separate but equal holding” of Plessy v. Ferguson violated the equal protection clause of the 14th Amendment.
While the result of ending segregation was positive the Constitution has a mechanism to fix or undue any injustices that may have taken place. It is the Legislative branch, the House of Representatives and the Senate that needs to make new law not the Supreme Court. The Supreme Court is supposed to uphold the law. This decision is one of the turning points in American history because the Supreme Court’s ruling possessed the undertones of political agenda. The notion of Judicial Activism has been around for a long time. It just might not be as camouflaged as it once was.
Former Clerk for Justice Harry Blackman, Edward Lazarus, pointed out in his book, Closed Chambers that, “… commentators had attacked Brown v. Board of Education for its reliance (in a footnote) on several primitive social scientific studies that sought to refute the idea of separate but equal by suggesting that segregation created feelings of personal inferiority in black children.” But the more important point Lazarus makes is that “…Brown’s methodology blossomed into a more general suspicion that liberal lawyers and like-minded judges were using questionable soft science of hired-guns academics to advance their legal agenda.”
If what Lazarus states is true then one can conclude that the outcome of Brown v. Board of Education may have appeared to be the correct decision. However, the Supreme Court in this case made new law and acted as the Legislative Branch rather than interpreting the law. After all, this case occurred before the Civil Rights Act of 1964, which ultimately prohibited discrimination in the workplace, education, voting and access to public facilities. The 1960s had a major impact on where the country was headed. With the birth of the Civil Rights movement, the feminists saw an opportunity to move their agenda as well. In trying to capitalize on an activist Supreme Court, a new leader emerged as a spokeswoman for the gender-afflicted. She was the director of the American Civil Liberties Union Woman’s Rights Project in the 1970s and a future Supreme Court Justice: Ruth Bader Ginsburg. In her New York Times Magazine article, “The Evolution of Justice, Linda Greenhouse describes Ginsburg,” as one who “began bringing cases to the court as part of a carefully constructed litigation campaign, Blackmun (the then Chief Justice of the Supreme Court) was unimpressed.” Greenhouse says that “Ginsburg’s goal was to persuade the Supreme Court to accept a different paradigm: to see sex discrimination as analogous to racial discrimination and to declare that under the 14th Amendment’s guarantee of equal protection, official policies that discriminated on the basis of sex were presumptively unconstitutional.”
Ginsburg failed to realize that she should have made her case to the state legislatures and assemblies throughout the country or to Congress, not the Supreme Court of the United States. The United States Supreme Court was once again being subliminally used as a vehicle to drive home an agenda rather than a place that upholds the law. To circumvent the Legislative process and go right to the Supreme Court and manipulate its purpose seemed much easier than lobbying Congress, state legislatures or assemblies.
Looking back on Jefferson’s words reinforces the notion that a Judiciary that has the final say is terribly dangerous. This notion proved true when the Supreme Court faced one of, if not the most, popular case it ever heard Roe v. Wade.
Roe v. Wade was the beginning of the end for any hope of judicial restraint. This case alone spurred a fiery debate that has endured over the last thirty years and is as feisty, if not feistier, today than it was in 1973. Roe v. Wade is the landmark case that allowed for the legalization of abortion. While the United States Constitution does not contain a right to abortion, the Court went ahead with its own agenda and made policy rather than upholding the law. Justice Antonin Scalia wrote in his essay, “God’s Justice and Ours,” “…my difficulty with Roe v. Wade is a legal rather than a moral one: I do not believe (and for 200 years, no one believed) that the Constitution contains a right to abortion.” He goes on to say, “And if a state were to permit abortion on demand, I would- and could in good conscience- vote against an attempt to invalidate that law for the same reason that I vote against the invalidation of laws that forbid abortion on demand: because the Constitution gives the federal government (and hence me) no power over the matter.”
This remark details how a member of the Judiciary should behave. Justice Scalia believes that he is not on the bench to legislate morality or values. He is there to uphold the rule of law, the United States Constitution. In the past several years there have been controversial cases that involved burning the American flag, the death penalty, gay marriage and revisiting the issues of Roe v. Wade. But one of the most controversial cases, one that was decided in the past two months, sent a shiver down the spine of many who believe the Court has become far too activist, Roper v. Simmons.
This case involved the issue of whether or not it was Constitutional to execute a youthful offender who was older than 15 but younger than 18 after he committed a capital crime. The Supreme Court reached new heights of judicial activism when it made a decision that was in part based on international law. Once again Justice Scalia in his dissenting opinion weighed in on this miscarriage of justice, “The Court thus proclaims itself sole arbiter of our Nation’s moral standards- and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures.”
The sheer lunacy in the Supreme Court’s decision and its reference to International Law undermines everything the Judicial Branch is supposed to be. The fact that the Court has become a policy maker short-circuits all three branches of government, almost making the Legislature powerless to undo its decisions. It is now painfully clear after 218 years why Thomas Jefferson spoke so fearfully of the Judiciary. His fear that it would become the most dangerous branch will soon be realized, if it has not been already, unless we the people take back our great nation.
SOURCES
THE GREAT AMERICAN HISTORY Fact-Finder, Ted Yanak & Pam Cornelison, 1993
Closed Chambers, The Rise, Fall, and Future of the Modern Supreme Court, Eward Lazarus, 1999
http://www.lamd.uscourts.gov/ushist.htm, History of the U.S.Courts
http://etext.lib.virginia.edu/jefferson/quotations/jeff1030.htm, 18. Judicial Review
http://etext.lib.virginia.edu/jefferson/quotations/jeff1270.htm, 29. The Judicial Branch
The Evolution of a Justice, Linda Greenhouse, The New York Times Magazine, April 10, 2005
God’s Justice and Ours, Antonin Scalia, May 2002 http://print.firstthings.com/ftissues/ft0205/articles/scalia.html
Supreme Court of the United States Decision, Justice Anthony Kennedy, Roper v. Simmons, March 2005
Supreme Court of the United States Dissent Opinion, Justice Antonin Scalia, Roper v. Simmons, March 2005
Supreme Court of the United States Decision, Justice Harry Blackmun, Roe v. Wade, January 1973

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