By Mark Rhoads -
The idea of judicial review of legislative acts was around in colonial times but Article III of the Constitution says nothing about any role for the Supreme Court as the only supreme arbiter of what the Constitution means. That power was claimed by the Supreme Court for itself in Marbury v. Madison 5 U.S. 137 (1803).
Mostly since 1803, the other two branches have gone along with the gag. But in the last 60 years, a dangerous and irrational myth has grown up around the Supreme Court that goes beyond merely right of review claimed in Marbury to a crazy claim that any decision of the Court somehow like magic morphs into an amendment to the Constitution itself. Thus from now on, if you choose not to endorse the idea of gay marriage or if you advocate the repeal of Obamacare by Congress in the future, many on the Left will accuse you of advocating "unconstitutional policies" just because the Court has ruled in favor of those two laws.
If this sounds far fetched, it has happened several times in the past among academics who should know better.
A Supreme Court decision, like any other court decision, does of course bind the litigants in a case and because of the doctrine of Stare Decisis, the decision often sets a precedent that is usually followed by lower courts in future rulings. But the decision of the Court in the law of the case rather than in dicta (opinion) still is only an opinion in one case and does not become a de-facto amendment to the Constitution.
Tragically there are many reasons for conservatives to now understand that the modern Supreme Court is an enemy of the rule of law. The fact that justices so routinely substitute their own preferred policies for constitutional intent is only one of the big problems and not even the greatest challenge to liberty. The founders gave lifetime appointments to federal judges including Supreme Court justices. Their intention in 1789 was to insulate the justices from undue influence by prevailing political winds in favor of more long-term stability and slower changes in the law. But experience has shown in recent decades that the combination of arbitrary and capricious judicial review and lifetime terms of office make the least accountable branch of government even more unaccountable to the people and maybe unaccountable even beyond what the founders might have intended.
Many western democracies in Europe have long-term appointments for their highest court judges but they do not have lifetime appointments. I respect the founders but I think they got this one dead wrong because they did not foresee a judiocracy whose elite members would hang around almost until death if they could. The lifetime appointment should be abolished in favor of a long but still finite term in order to restore some accountability but not sacrifice independence.
It is ironic that Chief Justice John Roberts might have thought he was protecting the institution of the Court when he sided with Obamacare twice in both 2012 and 2015 in spite of what he admitted were Constitutional flaws with the law. In fact sadly, Roberts has done a great deal to undermine the integrity of the Court int he eyes of millions of Americans who once respected the institution. The Court has no value in our system if it is only to be a third political branch and especially a political branch that is not elected by the people. The time has come for a new President and Congress in 2017 to overtly reverse Marbury by law or by constitutional amendment and impose term limits on the service of all federal judges including Supreme Court justices.
In the short term, the bill proposed this week by Rep. Brian Babin (R-Texas) to force the justices and their staff to enroll in Obamacare is a good start and it should be expanded to make Congress and the President also live under Obamacare with no exemptions. It is only fair that policy makers be forced to live under the same laws they impose on the citizens.
