The fiftieth anniversary of the Brown v. Board of Education generated several articles in Chronicles outlining the noxious legacy of that dubious decision. But there were hundreds (if not thousands!) of other decisions by the judiciary that misinterpreted the Constitution, disregarded millennia of Western traditions and laws, and spat in the face of American voters.
Even before the Lyndon Johnson-Earl Warren revolution that fatally undermined America, the Supreme Court was hardly a force for restraint. For example, the famous Marbury v. Madison case is an example of the Supreme Court overstepping its bounds. Article III of the United States Constitution does not provide for the Supreme Court to have power of judicial review – in other words, there is no explicit authorization for the Court to override legislative decisions. This did not prevent Chief Justice John Marshall from declaring an act of Congress unconstitutional and establishing the dubious doctrine of judicial review by which the courts could override executive and more importantly, legislative decisions.
Another early example of judicial malfeasance was McCulloch v. Maryland (1819) where the Supreme Court established the supremacy of the federal government over the states and carved out implied powers for the Congress (read: the federal government). Then, a mere two years later in Cohens v. Virginia, the Court asserted its power to declare the decisions of state courts unconstitutional.
Another 19th century case, Gibbons v. Ogden (1824) resulted in the robed rogues of the Supreme Court giving Congress the power to regulate interstate commerce. This monstrosity, much opposed by current Justice Clarence Thomas, was later used by the federal government to run roughshod over states rights during the New Deal, the Civil Rights era until being somewhat tempered by the Rehnquist Court with its U.S. v. Lopez and U.S. v. Morrison decisions. But as with judicial review, the imperial overreach of the federal government, allowed and abetted by the Supreme Court with its Commerce Clause interpretation is supported by otherwise originalist judges. Justice Scalia’s unfortunate concurrence in the Gonzales v. Raich case is a case in point. As Justice Thomas pointed out it in his dissent, “If the majority is to be taken seriously, the Federal Government may now regulate quilting bees, clothes drives, and potluck suppers throughout the 50 States.”
This tradition of an imperial, unfettered, arrogant, and malevolent judiciary makes it way down from the ornate halls of the Supreme Court to the humble, threadbare courtrooms of American cities. One judge in my local courthouse is known for his hysterical outbursts in full view of the jury – embarrassing flashes of uncontrollable shrieking accompanied by the tossing of his spectacles on the table. Another judge I know often presides over murder trials and sent dozens of people to prison for life. This mustachioed martinet keeps his courtroom so dark, that witnesses and attorneys cannot read the documents in front of them and so cold, that a juror in his last trial came down with a fever. He never comes to the courtroom earlier than 11 a.m., takes a two hour lunch, and addresses everyone with a menacing murmur. Yet another judge, openly tells attorneys that he does not care about following the law, but only wants to do what he feels is “right” and prides himself on never acquitting a single defendant in a non-jury trial. And such examples are legion.
As Thomas Jefferson wrote in his 1820 letter to William Jarvis:
You seem 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 … Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.