• Just Say No to Judicial Supremacy: An Idea Whose Time Should Have Never Come

    Surge Summary: The notion of “judicial supremacy” is a time-honored one in American jurisprudence — but that doesn’t mean it’s a constitutional one. The nation’s Founders intended the “Supreme” Court to be an inferior branch of the government; not necessarily the final word on what the Law means. 

    by Bryan Fischer

    I find myself in a place I never thought I’d be, in almost total agreement with the New York Times. One of its regular columnists, Jamelle Bouie wrote a strong piece against judicial supremacy, which makes the same points I have been making about Supreme Court tyranny since my show began in 2009.

    The only reason the Times would publish a piece like this is that they realize they are losing their virtually permanent grip on the Supreme Court, which is the only branch of government that has advanced their agenda. While they can’t get their extremist views through Congress on dismembering babies in the womb, normalizing sodomy, approving sodomy-based marriage, and granting special rights to transgenders (looking at you, Neil Gorsuch) these ideas sail right through the Supreme Court.

    And because we as the American people have ceded judicial supremacy to the Court, these opinions are treated as if they are the law of the land. But they are not.

    Judicial supremacy is the odious conceit that the Supreme Court’s job is to tell us “what the law is,” to borrow from Chief Justice John Marshall, who invented the concept by snatching it from the ether in 1803. It is a fatal and wholly unconstitutional falsehood that the Supreme Court is the supreme authority on the law and the Constitution. It is not. But because this immensely consequential fabrication was invented just 14 years after the Constitution was ratified, many people think it is a part of the Constitution and always has been.

    What makes it the “Supreme” Court is only that it is authorized to take on cases that state supreme courts can’t. For instance, the Court rules on matters of international law and adjudicates conflicts between two states, which cannot be entrusted to the courts of one state or the other for obvious conflict of interest reasons.

    The Court, according to Article III, is authorized to settle “cases and controversies” between plaintiffs and defendants, just like state courts do. But the Court’s authority is confined to the parties that appear before it, and to no one else, anymore than a court ruling that a robber is guilty has any bearing on the next accused robber that comes into that court.

    This is why Chief Justice Roy Moore quite correctly refused to accept Obergefell as binding on Alabama. He explained it very simply: we weren’t a party in that case, so the ruling doesn’t apply to us. We never had an opportunity to argue on behalf of the state of Alabama in defense of our state constitution, which identifies marriage as exclusively the union of one man and one woman. We will accept, he said, the ruling of the Supreme Court regarding the 16 plaintiffs. We’ll accept that those 16 people can get “married,” but we refuse to accept the premise that that ruling has anything to do with the way we do things in the state of Alabama.

    This is why Abraham Lincoln accepted the Supreme Court’s wretched Dred Scott opinion only as it applied to Scott, since Scott was the plaintiff and actually appeared before the Court. But Lincoln refused to accept that the opinion set any kind of precedent for the Union as a whole. Wisconsin refused to accept the Scott decision at all, and declared it null and void in the Badger State.

    The Founders did not make the judicial branch a coequal branch of government, but an inferior branch to the executive and the legislative branches. The Founders created it to be the weakest of the branches, since the Constitution gave it, as Alexander Hamilton said in The Federalist Papers, “no influence over either the sword or the purse, …It may truly be said to have neither FORCE nor WILL, but merely judgment.” In other words, the Supreme Court can issue its opinions but has no power to enforce them or compel anybody to submit to them.

    President Andrew Jackson was exactly right when he is reported to have said to Chief Justice Marshall in a highly charged case involving Indian removal, “The Chief Justice has issued his opinion. Now let him enforce it.”

    Since the Court has no authority over anyone who did not appear in its chambers, the searing question for today is this: When the Supreme Court told us nobody in America could have prayer and Bible reading in schools, why did we listen?

    The views here are those of the author and not necessarily Daily Surge

    Image: Chief Justice John Marshall; https://creativecommons.org/licenses/by/2.0/; Adapted from: https://www.flickr.com/photos/65193799@N00/145875663/

    Bryan Fischer may be contacted at bfischer@afa.net .Follow Bryan Fischer on Facebook at “Focal Point” and on Twitter @bryanjfischer. Host of “Focal Point” on American Family Radio, 1:05 pm CT, M-F www.afr.net

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