What would the country be like if Congress added to every law it passed a section that said “No court of the United States or any state shall have power to review or interpret this act”? Such a proviso, popularly known as a “stripper,” prevents the Supreme Court from declaring the act unconstitutional. In the new America, we would not wait around for two or more years to find out if a law is legal—and then be obliged to deal with hundreds of pages of grotesque distinctions.
For example, in the ObamaCare case (National Federation of Independent Business v. Sebelius), the Roberts Court found the healthcare mandate was not a “tax” but a “penalty” for purposes of the Tax Injunction Act, which would have stripped the Court of power to hear the case, but was a tax and not a penalty for purposes of upholding the mandate’s constitutionality. That, as the dissenters write, “Carries verbal wizardry too far, deep into the forbidden land of the sophists.” A tax imposed on going without health insurance sounds a little odd. If we can tax that omission, we can presumably tax any other omission, including the failure to eat enough broccoli. In any case, the concepts the Supreme Court uses are so plastic that they allow it to reach any result five justices agree on.
Justice Breyer recently said “someone has to have the last word.” The current arrangement, in the absence of a “stripper,” gives the Court the last word. The other branches are supposed to follow the Court’s ruling. The problem with that, of course, is that each of the other branches has a constitutional obligation of its own. The president should not enforce a law he believes is unconstitutional. The Congress should not pass laws it believes are unconstitutional.
The existing practice benefits all the players at the cost of their sworn obligations. Congressmen are assured of a permanent job, since all the controversial issues are passed off to the Court. Issues that are traditionally legislative have become judicial. The president benefits because he can exercise power the Constitution does not give him. The Court will not rein him in: He can carry on an illegal war without interference. (The Court calls war a “political issue.”) The Supreme Court benefits because it exercises power the Constitution does not give it. The justices become celebrities.
If ObamaCare had contained a stripper, the country would have known where it stood in 2010. The Court would not have been able to deal with the Affordable Care Act. Constitutional checks, however, remain in place. The House of Representatives can choose not to fund implementation. A future president can refuse to enforce the law if he thinks it is unconstitutional, like Jefferson did with the Alien and Sedition Acts. In both cases, there is democratic accountability—we can throw our representative or the president out if we don’t like his decisions. If the branches disagree, they have to work out their differences.
The ObamaCare decision should mark the end of what has been a durable Republican political issue—i.e., you must vote for the GOP candidate for president, even if you don’t like him, because only he will appoint Supreme Court justices who are not “activist” judges. Since 1968 the president has appointed 16 justices to the Supreme Court, of which 12 were Republican and 4 were Democratic. Five makes a majority, but conservatives still don’t have a majority they can count on. Many of the Republican appointees have drifted leftward, influenced, as Bob Novak used to say, by Washington Post editorials. There is no record of a Democratic appointee drifting right.
The Republican idea of trying to take over the Court by changing personnel was never intelligent because the problem with the Court is more basic. The national court always enhances the national power. And the Supreme Court tends to reflect elite opinion, which makes it out of touch in a country where the people are more conservative than the elite.
Chief Justice Roberts, at his 2005 nomination hearings, described the Court’s role as that of an umpire—enforcing clear rules with minimal discretion. In fact, the Court is something unknown to organized baseball—a discretionary umpire who calls only four out of every hundred pitches. And even more aggravating, it won’t explain why it won’t call the other 96. The Court claims the power not to decide a constitutional case properly brought to it: It takes about 75 cases per year of 2,000 offered. The power to select a case from the great many offered, many of which are constitutional, enables the Court to execute an agenda—it selects a case if it presents an issue the Court wants to decide. The Court, because the constitutional principles are so vague, can decide any case it selects any way it wishes.
The Founding Fathers provided Congress with almost complete control over the federal judicial power. Article III of the Constitution vests the judicial power in one supreme court and “such inferior courts as the Congress may ordain and establish”; in other words, the existence of lower courts (district and circuit) is discretionary with Congress. The Constitution gives the Supreme Court a narrow obligatory jurisdiction: suits involving ambassadors and those in which a state is a party. It gives Congress the authority to regulate the appellate jurisdiction of the Court to hear cases from lower federal and state courts. Current law includes about 70 “strippers.” Article III authorizes Congress to reduce the Court to insignificance, dealing with ambassadors’ parking tickets and cases in which a state is a party. Whether the Court is powerful or irrelevant is up to Congress.
The people need to know the extent of Congress’s authority so we can hold our congressmen accountable. Does a majority of the country believe the Court should have the power the current arrangement gives it? Some say the Court is a helpful check on a runaway Congress. Others ask, “What examples of that do we have?”
Jefferson said democracy gives us a government as good as the people. We’re not getting that now, but we could.
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