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The Supremes – (not the singing ones)

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

By Robert Brescia
July 1, 2022

Some Americans, apparently despondent over recent Supreme Court decisions, have concluded that these events, taken together, somehow signal the “grand finale” of the court. They talk about impeaching justices, expanding the court, finding Congressional pathways to reverse or somehow nullify Supreme Court of the United States (SCOTUS) decisions. Funny thing about SCOTUS—their decisions will be easily accepted or agreed with by about half the country and easily rejected or disagreed with by the other half. It’s like a football game—one team wins, the other loses. Usually the losing team however, does not seek to eliminate or otherwise radically change the game of football. Instead, they analyze the reasons that did not prevail and try again at the time of the next challenge.

Sports analogies aside, the Supreme Court has been and continues to be the only governmental branch with the exclusive mission of “saying what the law is”. The court interprets the Constitution and looks at all laws passed by the congress, as well as the Executive Branch’s Executive Orders, for conformance to the Constitution.

It all began with the writing of the Constitution in 1787 and its ratification in 1789. The founders first dealt with the Legislative Branch because they felt it was the most important part of the proposed federal system—establishing a body that could make laws. After the feckless 10-year run of the Articles of Confederation, they realized that there must be some legislative backbone to the new country—while still preserving states’ rights. Article 1, therefore, is all about the Legislative Branch. Then they thought, well it would be great if we had an Executive Branch to actually do things—to execute the laws that the Congress passed. Article 2, therefore, created the Executive Branch along with President whose primary function was (and still is) to “take Care that the Laws be faithfully executed.” Article 3 deals with the Judiciary Branch – and we should thank our lucky stars that the founders were wise enough to create it at the outset of our country. The Supreme Court is the arbiter for the Constitution, otherwise referred to as the “law of the land.”  It really cemented its powers in 1803 with the Marbury v. Madison case. Following is an extract from www.oyez.org of that case:

Thomas Jefferson defeated John Adams in the 1800 presidential election. Before Jefferson took office on March 4, 1801, Adams and Congress passed the Judiciary Act of 1801, which created new courts, added judges and gave the president more control over appointment of judges. The Act was essentially an attempt by Adams and his party to frustrate his successor, as he used the act to appoint 16 new circuit judges and 42 new justices of the peace. The appointees were approved by the Senate, but they would not be valid until their commissions were delivered by the Secretary of State.

William Marbury had been appointed Justice of the Peace in the District of Columbia, but his commission was not delivered. Marbury petitioned the Supreme Court to compel the new Secretary of State, James Madison, to deliver the documents.

Marshall expanded that a writ of mandamus was the proper way to seek a remedy but concluded the Court could not issue it. Congress did not have power to modify the Constitution through regular legislation because Supremacy Clause places the Constitution before the laws. In so holding, Marshall established the principle of judicial review, i.e., the power to declare a law unconstitutional.

We are fortunate to have a Supreme Court. Even the country we broke away from did not have a Supreme Court until 2009 and it only somewhat resembles ours. As long as we are differing in our views and perspectives as a people, the Supreme Court will also be. That system has and will continue to produce decisions that follow the differing perspectives of the justices’ interpretation of the Constitution. They do not, by design, follow the polls or how the justices perceive American beliefs of one group or another. They follow the letter of the law always using the Constitution as a template. I believe that Justice Clarence Thomas recently expressed this same thought clearly: “You can be in the middle of a hurricane—or you can be on a calm day—north is still north. You can be in a thunderstorm—north is still north. People can yell at you—north is still north. It doesn’t change fundamental things… and in this business right is still right—even if you stand by yourself.” Long live the Supreme Court!

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 for National Board for Certification of Teachers (NBCT) at Stanford University. The Governor of Texas appointed him to the State Board for Educator Certification (SBEC). Bob has a doctoral degree with distinction in Executive Leadership from The George Washington University. Contact him at [email protected] or on Twitter at @Robert_Brescia.

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