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The Old Supreme Court Just Ain’t What It Used to Be…

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Robert Brescia
September 18, 2023

Article 3 of the U.S. Constitution describes the Judicial Branch, and the U.S. Supreme Court embodies that branch. Since 1803, with the Marbury v. Madison (”Midnight Judges”) case, the Supreme Court has cemented its position as the only branch of government that can exercise judicial review—the right and the obligation to interpret laws and executive orders for Constitutional alignment. We have Chief Justice John Marshall to thank for this precision. I, along with many other Americans, used to be quite reverent of the stature and functions of the Supreme Court. It was almost as if the decisions that it produced were sacrosanct and for our part we would dissect and laud the wisdom that some of these decisions contained. A Constitutional lawyer was an expert at the top of his/her game who could serve as an approved translator of Supreme Court language.

What has changed since those days? Well, we discovered that the Supreme Court has justices who were once regular people just like us, with all the shortcomings and foibles that we all have. We learned that each justice does the fine tuning of the cases presented to the court while the law clerks and support staff do the heavy lifting and gross preparation of those case holdings. We also learned that justices, while their robes are all the same color, are very different people politically behind those homogenous-looking robes. They exhibit political ideologies when determining their positions on social issues. We discovered that the Chief Justice has, at least on one recent occasion, seen fit to create law rather than interpret it. We saw for the first time that a major information leak on a Supreme Court decision has taken place and that the court apparently hopes that we forget all about that unfortunate event. We see that the Court continues to deal extensively with the notion of implied powers. Here are three examples:


Chief Justice John Roberts failed to follow the well-established 200-year-old core precedent set by Chief Justice John Marshall. He did this by modifying the Affordable Care Act so that it would pass Constitutional muster. It all dealt with the concept of “inactivity” in the context of an American refusing to buy health insurance and thereby being imposed a penalty tax. Such a refusal is the inactivity in question here. Individuals who choose not to purchase Obamacare health insurance may or may not be engaged in interstate commerce. The Obamacare mandate was necessary to effectively regulate the interstate health-care market, and therefore Congress has the implied power to enact it. Roberts argued that regulating that inactivity is “a great, substantive and independent power” that cannot be implied, no matter how effective it might be in regulating the national health-care market. Therefore, he insisted on the language of a tax, which was within the Constitutional purview of the Congress. He stated: “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax,” Chief Justice Roberts wrote in the majority opinion. “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”

Military Draft:

The military draft is another example of the Supreme Court’s recognition of implied powers. We find nothing in the Constitution prescribing a Congressional right to exercise a military draft. This became a huge issue during the Vietnam conflict. It does state in Article 2 however, that Congress has the enumerated power “to raise and support armies”. Therefore, we can see that the draft is an implied power to do that if the Congress deems necessary. Military conscription is still alive and well and the Selective Service System is still a government agency charged with the identification and registration of young people in the event there would be another draft.

Roe v. Wade:

In Roe v. Wade, the Court said that the Constitution provides a fundamental “right to privacy” that protects a person’s right to choose whether to have an abortion (14th Amendment). However, such a right is not absolute because the government has an interest in protecting health and prenatal life. So, it employed the concept of trimesters to enact varying degrees of federalism into the mix, ranging from a preponderance of federal level power in the first trimester to a focus on state regulation in the second and third trimesters. The law was overturned in 2021 as “exceptionally weak,” and that the original decision has had “damaging consequences.” Justice Samuel Alito reminded us that there is Constitutional provision In summary, as a nation we have no further national standard or regulation about the nature of pre-birth life—that is a state responsibility and expressed through their representatives to the Congress.


As our American society has become so much more transparent, we can now see both the forest and the trees of the U.S. Supreme Court and they are not as pristine and pure as the driven snow. We can see the blemishes and the irregularities of its skin in high-definition as brought us as television viewers. The question before us is whether this is a good or a bad thing for our society as a whole. All told, we must continue to accept the exclusive province and duty of the Court to say what the law is even though that court has no enforcement provisions. Stare Decisis and Sine Die!

Author: Dr. Robert Brescia respects the wisdom of generations, promotes the love of learning, teaches ethics to university students, government & politics to AP seniors, and leadership to organizations. He is a candidate with the National Board for Certification of Teachers (NBCT) at Stanford University and serves as Social Studies Department Chair at Permian High School in Odessa, TX. The Governor of Texas re-appointed him to the State Board for Educator Certification (SBEC) for a six-year term. Bob has a doctoral degree with distinction in Executive Leadership from The George Washington University. Contact him at [email protected].

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