The Supreme Court and Judicial Review

According to two well-known "Washington lawyers" (one of whom is married to Kelly Anne Conway --- man the pillow talk in that household must be interesting), Trump's (sorry I find myself hard-pressed to put the title "President" before his name) pick for Acting Attorney General, in the aftermath of the virtual firing of Jeff Sessions, is "unconstitutional." The primary reason for this is that he has never held a Senate-confirmed post of any kind. (A suit from Maryland is pursuing this avenue of challenge.) Then there is also the well-known matter of Whitaker's pre-judgement in the legitimacy of the Mueller investigation, and its breadth.

And then there is Mr. Whitaker's position on the subject of this column: the role of the United States Supreme Court in the review of actions of both the Federal and State governments to determine their Constitutionality. This role of the Supreme Court, which has weighed heavily in the matter of the operations of the Federal government especially since the Dred Scott decision of 1857 which held that former slaves, regardless of where they lived, were not human beings but were simply property, is not to be found in the Constitution. Indeed, in Article III of the Constitution which defines the Supreme Court and its duties there is no direct provision that gives it the power to review decisions of the other two Branches and declare them "Unconstitutional."

Rather it was established in a series of decisions of the Supreme Court itself in the early 19^th century. Indeed, the third Chief Justice of the United States, John Marshall, made it up, not out of whole cloth but through a series of "if/then" propositions that not everyone at the time, certainly not the Jeffersonians, agreed with. The most famous of these cases was "Marbury v. Madison." As it happens, the new Acting Attorney General, who has cases that may well come before the Supreme Court for a ruling on their constitutionality, supports a position taken by an apparently fairly small number of right-wing lawyers and legal academics that Marbury v. Madison was wrongly decided, and thus Supreme Court's Constitutionality Review power should not exist.

My 1996 book "The 15% Solution: How the Republican Religious Right Took Control of the U.S., 1981-2022" is based on what the Republican Party and the Religious Right would do if they ever took the kind of power they had under the first two years of the Trump Administration. In the book, they move the U.S. government steadily rightward, eventually establishing an apartheid state covering all of the North American continent. Along the way, to facilitate their slow-motion fascist revolution, in "2001" a Chief Justice "Steps" (Scalia, get it?) writes, for the then Right-Wing majority of the Court, an opinion that removes from it the power of Judicial Review. This is the position that Mr. Whitaker adhered, at least at some point in his legal career. Here is that totally fictional decision, in summary form.

Chapter Five 2003: Anderson v. Board of Education

Summary of the Decision (Supreme Court Bulletin)

"Supreme Court Has No Constitutional Review Authority"

Anderson v. Board of Education, Cer tiorari to United States Court of Ap peals for the Third Circuit.

No. 101"'11. Argued October 31, 2002--Decided May 13, 2003.

Petitioner, a parent acting on behalf of her minor child, brought a civil ac tion against the Board of Education of the State of New Jersey seek ing to pre vent it from enforcing a law passed dur ing the 2001 ses sion of the State Legis lature mandating voluntary prayer in the public schools of that state. Both the trial and appeals courts in the state of New Jersey found for the respondent. Petitioner appealed to the Su preme Court. With out arguing the merits, respon dent filed a brief claiming that under 28 U.S.C., Chap. 81, para. 1260, gener ally known as the "Helms Amend ment [1]," the U.S. Su preme Court did not have ju risdiction in this case.

Held: Under the cited section of the U.S. Code, the Supreme Court has no jurisdiction to review appeals of state school prayer statutes. Fur ther, there can be found in the Constitution of the United States no grant of authority to the Supreme Court to review the action of any other branch of the Federal Government or any branch of any state government for its "constitutionality."

(a) Article 3, Section 2 of the Constitution defines the authority of the Federal judicial power: "The judicial power shall extend to all cas es, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to all cases affect ing ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to contro versies to which the United States shall be a party; to controversies between two or more states."

(b) It is clear that the plain language of this article supports the hold ing of the Court. Under the Doctrine of Original Intent, by which the Constitution should always be interpreted, it is clear that the Consti tution means only what it says, not what any individual judge or group of judges collectively think that it ought to say or would like it to say. It thus be comes clear that the series of decisions handed down by Chief Justice John Marshall and his colleagues in the first quarter of the 19th century which established the theory of Supreme Court "judicial re view" for "constitu tionality" were based on faulty legal rea soning.

(c) In the first of these cases, Marbury v. Madison, the Court inval i dated an "Act of Congress giving the Court jurisdiction to hear origi nal appli cations for writs of mandamus, because in such cases the Con stitu tion limits the Su preme Court to appellate jurisdiction" (Cox). While that opin ion may be valid, nowhere does the Constitution give the Court the power to apply it with the force of law. Rather, as in Great Britain, the legisla tive branch, through the will of the majority, is the only ap propriate judge of the "constitutionality" of its own acts. In his written opinion, the Chief Justice stated that if "the courts lacked the power to give sting to constitu tional safeguards . . . , the Legisla tive and Execu tive Branches might too often override the Constitution" (Cox). That may well be true. But if the Founding Fathers had wanted to give the Federal judiciary that "protec tive" function, they would have clearly writ ten it into the Constitu tion. Chief Justice Marshall was reading into the Consti tution words that he wanted to see -- but were not there.

(d) In Martin v. Hunter's Lessee, Justice Joseph Story expanded the Su preme Court's review powers to include decisions made by the State courts (Cox). Like Chief Justice Marshall, Justice Story was reading into Article 3, Section 2 of the Constitution what he wanted to see there. In Cohens v. Vir ginia Chief Justice Marshall affirmed Justice Story's con clu sion in Martin, using the same faulty reasoning (Cox).

(e) Finally, in McCulloch v. Maryland, Chief Justice Marshall not only reaffirmed the Court's review authority, unstated in the Constitu tion, but found in it other "implied powers," giving the Congress au thority to undertake ac tions not otherwise specified by the Constitution (in this case renewing the charter of the United States Bank which it had originally established in 1791) (Cox).

(f) After extensive review of the opinions and reasoning in the deci sions made in the aforementioned cases, careful review of the language of the Con stitution itself, and a consideration of the available evidence on Original Intent, the Court was able to find no basis for the conclu sions on "implied powers" that Chief Justice Marshall and his colleagues drew in those decisions referable to the authority of either the Supreme Court or the Congress. Thus, the Court held, the precedents estab lished by those cases and all their successors down through the years were based on faulty rea soning and a reading of the Consti tution not in ac cord with the Doctrine of Original Intent. Thus those faulty prece dents must be abandoned. Since the specifics of Marbury, Martin, Cohens, and McCulloch had long since become moot, the Court chose not to reverse those decisions. However, it did reverse the holdings made in those cases that the Supreme Court had any power to review the actions of the Fed eral Execu tive and Legislative branches or any State courts for their "constitu tionality."

11 F. 11th 111, Affirmed. Chief Justice Steps delivered the opinion of the Court; seven justices joining, one dissenting.

Author's Commentary (the "author" here being "Jonathan Westminster," the fictional author of "The 15% Solution)

Anderson v. United States [Author's Note: this is a fictional case that I made up for the novel] was the most signifi cant decision handed down by the Supreme Court in the old United States since Marbury v. Madison, re ferred to in the decision summary reproduced above. In that case, Chief Jus tice John Marshall had established the power of the Su preme Court to review actions of the two other branches of the Federal government. As cor rectly noted by Chief Justice Steps that power is no where clearly grant ed to it by the Constitution itself. Nevertheless, Mar shall said, if the Supreme Court found such actions to be unconsti tutional, they were null and void. His reason ing went as follows (Cox):

"The Constitution is either a superior paramount law, un change able by ordinary means, or it is on a level with ordinary legisla tive acts, and, like other acts, is alter able when the legis lature shall please to alter it. If the former part of the alterna tive be true, then a legislative act con trary to the Constitution is not law; if the latter part be true, then written constitutions are ab surd at tempts, on the part of the people, to limit a power in its own nature illimitable."

Marshall, of course, held that the "former alternative" was true, its truth found in the fact of the Constitution itself. He then drew the de fensi ble con clusion that the body given the power to adjudicate disputes arising under the Constitution, and Article 3 Section 2 surely did that, indeed had the power to review the actions of the other two govern men tal branches for their constitu tionality. That authority was extended to the appellate review of state court decisions having constitutional impli cations under the defen sible conclusion that by ratifying the Con stitution in the first place, the states had ceded to the Unit ed States that appellate jurisdiction, which is clearly con tained in Article 3 Section 2 (see the decision in Cohens).

Once the Court under Marshall's leadership had made those judgments, the full American power structure quickly came to agree with him. The Jeffer sonians did make several modest attempts to undermine the inde pendence and authority of the Supreme Court, but failed, and ultimate ly gave up. From that time onwards, American jurisprudence came to be firmly established in the legal structure that Chief Justice Marshall had constructed on the Constitution's base, as he interpreted it.

One very important principle set forth by Marshall, and subsequent ly accepted by all parties to American government down to the Transi tion Era [that is, in the book, the period of transition from Constitutional Democracy to the fascist government that eventually established the apartheid state of the New American Republics] was that the Constitution was a document that meant more than it explicitly said, that was open to interpretation, and held within itself "im plications." And by implication that meant the Constitution was a docu ment that could grow and change with changing times and circumstances, that it was indeed designed to grow and change with changing times and circumstances.

During the Transition Era there came to be propounded what the Su preme Court Bulletin's summary of Anderson refers to as the "Doc trine of Original Intent." One of its early protagonists was one Edwin Meese, the most promi nent of President Ronald Reagan's several Attor neys General, later President of Right-Wing Reaction's Transition Era coordinating body, the highly secretive Council for National Policy. A for mer local prosecutor with no back ground in Con sti tu tion al law, a lawyer who once was supposed to have said that if the police arrested some one that was evi dence enough he or she was guilty, Meese held that if it wasn't in the Consti tu tion, in clear lan guage, it didn't exist. (Meese later became the head of the National Council on Policy, the highly secretive coordinating body for a wide range of Reactionary Republican and Christian Rightist organizations during the run-up to fascism.)

A more cerebral proponent of the Doctrine was one Robert Bork. He had two principal claims to fame. One was that as the third"'ranking Jus tice De partment official in 1973, on the orders of President Richard M. Nixon he fired a supposedly independent prosecutor during the scan dal that eventually came to be known by the name "Watergate" and that eventually led to Nixon's resignation as President. (Bork's two superi ors at the time both resigned rather than carry out an order which in deed was later found to be unlawful.)

The other was that he was the most celebrated failed Supreme Court nomi nee in the history of the old U.S. And his nomination failed pre cisely because he held to Constitutional theories that were complete ly at odds with those held by almost everyone else at the time consid ered to be an authority on the mat ter. But his time eventually came. The Court did adopt the theory he es poused so eloquently in so many legal papers and articles. Summarizing the theory, Bork held that (1993):

". . . principles not originally understood to be in the Constitu tion [have no constitutional validity]. Where the Constitution is silent, [a Supreme Court] Justice has no [legislative review] authority. To act against legisla tion without authority is to en gage in civil disobedience from the bench and to perpetrate lim ited coups d'e'tat that overthrow the American form of govern ment."

By implication, of course, Bork was attacking Marshall, because what he found in the Constitution was certainly not originally under stood to be there (assuming that "originally" in this context means "when the Consti tu tion was written"). And by so doing, Bork was in the front of a move ment to deny 200 years of American jurisprudence. His, in essence, was the think ing behind Anderson.

It is interesting that Bork's theory of Original Intent would appear to have much in common with the theory of "Biblical Innerantism" that was all the rage among the Religious Right during the Transition Era and pro vided a major piece of the foundation of the thinking that lead to American Fascism. But that's another story, one we will get to later.

A spirited attack on the theory of Original Intent had been offered a few years before Bork wrote the article cited above by Judge Irving R. Kaufman, a Federal Circuit Court of Appeals judge (1987):

"I regard reliance on original intent to be a largely specious mode of in ter pretation. I often find it instructive to consult the Framers when I am called upon to interpret the Constitution, but it is the beginning of my inquiry, not the end. For not only is the quest for 'intent' fraught with obstacles of a practical na ture -- notably that the Framers plainly never foresaw most of the problems that bedevil the courts today -- it may also be more undemocratic than competing methods of construing the Consti tution.

"If the search for 'intent' sums up the constitutional enter prise, then cur rent generations are bound not merely by general lan guage but by spe cific conceptions frozen in time by men long dead. . . .

"The open"'textured nature of most of the vital clauses of the Con stitu tion signifies that the drafters expected future genera tions to adapt the language to modern circumstances, not con duct judi cial autopsies into the minds of the Framers. When the Founding Fathers talked about due pro cess, equal protection and free dom of speech and reli gion, they were em bracing gen eral principles, not specific solutions [emphasis added]."

Kaufman here is of course defending the expansive approach to Con stitu tional interpretation that lead to the broadening of protections for indi vidual rights that so enraged Right"'Wing Reactionaries in the latter half of the 20th century and lead eventually to Anderson.

In Anderson a group of Right"'Wing Reactionary justices overturned the whole U.S. legal tradi tion from the time of the founding and organization of the Republic because they didn't like the outcomes that tradition had produced. With the Court out of the way, by its own hand no less, Right"'Wing Reaction had suc ceed ed in emasculating the powers of one of the three protectors of Ameri can constitutional democracy, the Courts, the me dia, and the Congress, on which it had set its sights during the Transi tion Era [sound familiar, folks?]. Thus Anderson significantly accelerated the development of fascism in the old U.S. But who ever said that the Court was not always truly a political institution (Rodell)?

References:

Bork, R., "The Senate's Power Grab," New York Times, June 23, 1993.

Cox, A., The Court and the Constitution, Boston, MA: Houghton Mifflin, 1987, pp. 58, 59, 63, 66, 75, 342, 360.

Kaufman, I.R., "No Way to Interpret the Constitution," New York Times, Jan. 2, 1987.

Rodell, F., Nine Men: A Political History of the Supreme Court from 1790 to 1955, New York: Random House, 1955.

Supreme Court Bulletin (Windham, NH), "Supreme Court Has No Constitutional Review Authority," Vol. 24, No. 8, June 2003, p. 3.

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Author's Note (from the book): The [real] "Helms Amendment," offered in Congress a number of times from the early 1980s onwards by Senator Jesse Helms (R"'NC) (Cox) and his ideologi cal succes sors, was finally passed by the [fictional] 107th Congress in 2001. The language was unchanged from that version offered by Senator Helms in 1991 as S. 77: "Sec. . (a) This section may be cited as the 'Voluntary School Prayer Act'. (b) (1) Chap ter 81 of title 28, Unit ed States Code, is amended by adding at the end thereof the following new section: #1260. Appellate jurisdiction: limitations '(a) Notwith stand ing the provisions of sec tions 1253, 1254, and 1257 of this chapter and in accor dance with section 2 of Article III of the Constitution, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any case arising out of any State statute, ordi nance, rule, regulation, practice, or any part thereof, or arising out of any act inter preting, apply ing, enforcing, or effecting any State statute (and etc.) which relates to voluntary prayer, Bible read ing, or religious meetings in public schools or public build ings . . .'"

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My (Steven Jonas') Note: Yes, folks, I did not make the Jesse Helms stuff up. He really did want to strip the Supreme Court (and presumably the lower Federal courts as well) of the power of Judicial Review. Which is precisely the view that the new Acting Attorney General holds to as well, or at least did at one point in his career.