WHAT AMY CONEY BARRETT CANNOT BRING TO THE SUPREME COURT.
Julio Gonzalez, M.D., J.D.
The successful appointment of Justice Amy Coney Barrett is unquestionably the source of celebration. Justice Barrett will bring stability to the law and restraint to a Court that has a history of being all too intrusive in policy discussions and excessively legislative in its actions. She will be a restraining voice in the Court. Indeed, all indications are that she will serve as a stalwart for religious liberty, a champion of strict interpretation of the law, and a force against the usurpation of powers. But regardless of the positive force she will bring to the nation's highest bench, there will be one very important contribution she will not be able to make to the Court, because the issue goes beyond its confines. Justice Barrett will not be able to restore the proper check and balance between the judiciary and the two other branches of government.
How did we lose this balance?
Article III of the U.S. Constitution gives the courts “Judicial Power” over all cases and controversies arising out of the laws of the United States and the Constitution. It does not, however, give the court plenary authority over the question of a law's constitutionality. In fact, during the Constitution's drafting process, multiple ideas were expressed about how to handle an unconstitutional law. Some delegates argued that the question resided with the states since the national government, and indeed the Constitution, was a creature of the states and subservient to them. Others thought the question fell upon Congress. And still others averred that it was the individual to whom the question fell. In fact, the thought was that the moment an unconstitutional law was passed, it was void by virtue of its unconstitutionality. Thus, no one was obligated to obey it.
Ultimately, the issue of who determined the constitutionality of a law was not settled in Philadelphia, but allowed to remain dormant. The issue would be addressed by John Marshall in his seminal Marbury v. Madison opinion of 1803. In it, Chief Justice Marshall declared, “It is emphatically the province and duty of the judicial department to say what the law is.” Consequently, any law the court determines is repugnant to the Constitution will be void.
Audacious as the singlehanded power-grab was, the Congress of the day did not react to it, although by 1820 the consequences of the resulting change in the relationship between the three branches of government had caught the attention of Thomas Jefferson. In that year, Jarvis Williams sent a book he had written on the Constitution to Jefferson for his review. In response, the former president wrote:
You seem, in pages 84 and 148, to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is "boni judicis est ampliare jurisdictionem," and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.
So much for the modern argument that the Supreme Court is somehow apolitical! Indeed, it was the Civil War and its associated amendments that set the stage for the fulfillment of Jefferson’s prognostications. The Fourteenth Amendment to the Constitution included Due Process and Equal Protection clauses that federal judges would subsequently employ to force their will and power upon the states. With the appointment of progressive judges during the twentieth century, the Supreme Court engaged in the laborious work of redefining the various passages of the Constitution in manners neither foreseen nor intended by the Framers.
Thus, today we find ourselves in the odd situation of having all our attention focused on what Alexander Hamilton called the weakest branch of government, one whose powers were "next to nothing." That the judiciary has become the most powerful branch stands without repute. Not only is its overwhelming influence visible through the effects of rulings like Roe v Wade, Plessy v. Ferguson, Sebelius v. NFIB, Stone v. Graham, Fulton v. City of Philadelphia, and Wickard v. Filburn, amongst countless others, we can also witness it through the actions of those that have grown dependent on its influence.
Many contend that a major factor in the election of President Donald Trump in 2016 was the weight the future of the Supreme Court had on conservative voters. Presently, one of the central issues of the campaign has been the late induction of Justice Barrett. Not only have the Democrats used it as a rallying cry in an effort to unseat President Trump and take back the Senate, but they have often claimed that they would use their victory to "pack the Court" with liberal judges, hardly the attention merited by a branch having "no influence over either the sword or the purse."
Thus, we find ourselves at the crossroads of the same discussion I spurned with the publication of The Federalist Pages. If we are supposed to be the beneficiaries of the interactions between three co-equal branches of government, then where's the check on a Supreme Court opinion? And then there's this more disturbing question. If the Constitution belongs to we the people, then how come there is no conduit by which we the people may counter a Supreme Court opinion with which the overwhelming majority of us disagree?
The fact is that we are still at the mercy of a historical fluke resulting from a number of events unforeseen by the Framers. Until such time that we correct this historical error, we will remain under the thumb of a judicial oligarchy and the politicians that manipulate it for the purposes of forwarding their agenda.
Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He served in the Florida House of Representatives. He is the author of numerous books including The Federalist Pages, The Case for Free Market Healthcare, and Coronalessons. He is available for appearances and book signings, and can be reached through www.thefederalistpages.com.
Dr. Julio Gonzalez is an orthopedic surgeon living in Florida. He is a lawyer, author, and former member of the Florida House of Representatives. He is available for speaking engagements at email@example.com