Return power to the people: Ballot box beats courthouse

The turmoil over Justice Antonin Scalia’s replacement shows once more how political the Supreme Court has become. Choosing his replacement seems almost as significant as choosing a presidential candidate or speaker of the House.

Aren’t we veering toward government by the judiciary?

This danger springs not from the Constitution but from the doctrine of judicial review, enunciated by Chief Justice John Marshall: the Constitution is a written document and judges say what it means.

Why can’t Congress, the president or the people say?

When state laws conflict with the Constitution, yes the court can say. But not regarding Congress and the executive. If “constitutional” means rooted in the Constitution, judicial review is not constitutional. There is no such provision in Article lll.

Yet the Supreme Court gave us Buckley v. Valeo, Citizens United and Shelby v. Holder, decisions that struck down congressional legislation not because Congress had no constitutional power to regulate money in our elections or protect the voting rights of targeted minorities in states with a bad history, but because the court didn’t like the way Congress did these things. Those are political, not legal, decisions.

What’s more constitutional, Congress following the will of the people expressed in elections or conforming itself to whatever judicial fancy is swaying the court? That’s an exercise in cosmic constitutionalism, according to J. Harvie Wilkinson lll, former chief justice of the U. S. Fourth Circuit Court of Appeals.

The political opinions of nine (really five) judges are to be preferred to the political judgment of Congress whose finger is on the public pulse? Not “we the people” but “we of Dred Scott,” probably the sorriest exercise of judicial activism ever. Abraham Lincoln said “...if the policy of the government, upon vital questions, is to be irrevocably fixed by the Supreme Court ... the people will have ceased to be their own rulers ... having resigned their government into the hands of that eminent tribunal. ”

Fortunately Dred Scott was overruled by the Civil War.

But isn’t the court our shield against a tyrannical majority? Yes, the court did save us from criminalized flag burning, and protected us against limiting what corporations (considered as people now) and rich persons can spend on politics or running for federal office — all in defense of the Constitution.

But the court also gave us Donald Trump and voter ID laws and enabled the Koch brothers.

Didn’t Congress do it better?

How would the court stop an electorate turned fascist by 60 percent that wants a police state? Stand at the gate of the court, its arms up in protest? What did it do after the Army relocated thousands of Japanese-Americans to concentration camps following Pearl Harbor? The Army knows best, it murmured in Korematsu v. United States, amusing Japanese war lords, no doubt, who knew how impossible invading California would be.

Justice Learned Hand observed that a citizen better protects his rights by placing his faith in elected representatives who know him than in judges who don’t. No court can save a society that’s lost its sense of moderation, and no society that hasn’t lost it needs saving, he said.

In short, to beat evils like fascism, the ballot box is better than the courthouse.

Stop the court lassoing our politics with legal niceties, and replace its activism with restraint. The court is the cap to the federal judicial system, there to ensure an even application of the Constitution among its subordinate elements. Brown v. Board of Education and others like it are the good fruit of that responsibility.

It’s not there to supervise the Congress or president. We do that with the vote.

I suggest the following amendment: Justices will serve 12 years, the three most senior replaced every four years; two-thirds of the court must vote to overturn a federal statute because of an alleged violation of the Bill of Rights, and Congress can overturn it by a two-thirds majority.

Then, following Lincoln, we shall resume being our own rulers.

This story was originally published February 27, 2016 at 7:21 AM with the headline "Return power to the people: Ballot box beats courthouse."