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OpEdNews Op Eds    H2'ed 4/25/23

How to De-throne the Self-Appointed Kings & Queens of America

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Thom Hartmann
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"A judiciary independent of a king or executive alone is a good thing; but independent of the will of the nation is a solecism [a blunder], at least in a republican government."

The blowback against the Supreme Court claiming they had the power and right to strike down or rewrite laws was so severe that they didn't meaningfully touch that third-rail of constitutional interpretation again until 1856.

That was the fateful year when Chief Justice Roger Taney thought he'd "solve the slavery problem in America once and for all" with his Dred Scott decision, striking down and modifying numerous US laws by ruling that Black people were "property" across the entire United States, slave state or free state.

President Abraham Lincoln refused to enforce the decision, saying, essentially, "That was terrible for poor Mister Scott and he's going to have to go back to slavery, but I'm not going to apply this to any other people in America" (my words, not his). Many historians argue that this overreach by the Court in Dred Scott, based in their claimed interpretation of the Constitution and the Marbury decision, led us straight to the Civil War.

Nonetheless, it wasn't until the early 20th century that the Court started tearing down or rewriting laws in really great numbers; today it's almost all that they do.

This "judicial activism" -- particularly in the 1950-1980 era -- led to a movement among conservatives to quote Article III, Section 2 of the Constitution, which explicitly says that Congress can override the Court when they do such things, or even prevent them from taking such actions in the first place:

"[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Exceptions? Regulations? Congress can do that? Can Congress tell the Supreme Court what it can and can't rule on? Really?

Former Stanford Law School Dean Larry Kramer wrote an entire book about judicial review (the doctrine that the Court can strike down or rewrite laws) titled The People Themselves. His conclusion, in my read, was a clear "yes" (although he presents arguments against, too).

He got the title for his book from a letter Jefferson wrote when asked who should decide what laws "are or are not constitutional" if the Court shouldn't. Jefferson answered simply: "The people themselves." (I also wrote a book about this, in part: The Hidden History of the Supreme Court and the Betrayal of America.)

For the first century after the founding of our republic, in other words, the Supreme Court only rarely decided cases based on their interpretation of the meaning of the Constitution (and never, prior to 1803). Since the conservative takeover of the Court under Richard Nixon, however, that's been the majority of what they do.

And they apply that awesome power -- again, not explicitly given to them by the Constitution -- in ways that are shockingly corrupt.

For example, after decades of taking big bucks for her rightwing work on behalf of America's oligarchs, we learn that the wife of Supreme Court Associate Justice Clarence Thomas, Ginny Thomas, was in Trump's January 6th "rally" up to her eyeballs.

And she and her husband have also corruptly taken millions of dollars' worth of free trips and other gifts from a billionaire who regularly funds organizations making arguments before the Court on which Thomas repeatedly decided in Crow's organizations' favor using his supposed interpretation of the meaning of the Constitution as the basis for his decisions.

Senators Murphy, Blumenthal, Booker, Coons, Durbin, Gillibrand, Hirono, Klobuchar, Markey, Sanders, Whitehouse, Warren, Leahy, Menendez, Casey, Duckworth, and Van Hollen tried to do something about this corruption by imposing a judicial code of ethics on the Court, but their effort was blocked by Republicans in the Senate.

Lord Acton first noted that "absolute power corrupts absolutely," and the justices on the Supreme Court, when acting as a conservative majority that can ignore or even ridicule their liberal colleagues, have become absolutely corrupt.

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Thom Hartmann is a Project Censored Award-winning New York Times best-selling author, and host of a nationally syndicated daily progressive talk program on the Air America Radio Network, live noon-3 PM ET. www.thomhartmann.com His most recent books are "The Last Hours of Ancient Sunlight," "Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights," "We The People," "What Would Jefferson Do?," "Screwed: The Undeclared War Against the Middle (more...)
 

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