Posted on by kenferriesblog

Judicial review? Yes? No? Maybe?

Recently, Chief Justice John Roberts offered his thoughts on the role of the Supreme Court: “In our Constitution, the judiciary is a co-equal branch of government, separate from the others, with the authority to interpret the Constitution as law and strike down, obviously, the acts of Congress or acts of the president.”

Justice Roberts is talking about a concept called “judicial review.” The idea is that the Supreme Court, and the federal judiciary generally, have the power to review the acts of the other co-equal branches, executive and legislative, and rule upon the constitutionality of their acts. Should the court find unconstitutionality, the presumption is that the other branch is blocked from continuing to act “unconstitutionally.”

Interestingly, and perhaps significantly, there is nothing in the Constitution about “judicial review”.

It isn’t there.

There is no legislative action that codifies the concept of “judicial review” into law.

It isn’t there.

“Judicial review” traces its pedigree back to a single legal case decided by the Supreme Court in 1803, Marbury v. Madison.

Without getting sidetracked into the weeds, the Marbury decision held that the federal courts could not enforce provisions adopted by Congress that violated the Constitution. In denying itself the power to enforce an unconstitutional provision, the Supreme Court claimed the power to render decisions concerning the constitutionality of the actions of a co-equal branch. A review of the matter at issue – by the court – was necessary to determine the question of constitutionality in the first place, i.e. Judicial Review.

It had always been presumed that the federal courts could review state actions. If an action by a state was determined to be contrary to the provisions of the federal Constitution, the court could nullify the state action as being “unconstitutional.”

The Marbury case was different. What the court was reviewing was not a state action, but the action of a co-equal branch of the federal government.

Again, there was not then, nor is there now, any statutory or constitutional basis for such a power.

Nevertheless, over time, the outcome in Marbury v. Madison became accepted case law. Judge Roberts’ statement accurately states the current understanding of what is “judicial review.” For more than 220 years, this landmark decision crafted by the legendary Chief Justice John Marshall has defined the balance between the judicial branch and the other two co-equal branches,

But is that the end of the matter?

When asked recently if he was responsible for upholding the Constitution, our current president pleaded ignorance (never mind that oath he swore on Jan. 20, 2025) and passed off the question of “whose” responsibility it was to his “brilliant lawyers.”

Brilliant lawyers are still capable of coming up with less than brilliant answers, especially if the prime qualification for their job is unwavering loyalty to a single individual.

If, as Roberts claims, the federal courts have the “authority to interpret the Constitution as law and strike down, obviously, the acts of Congress or acts of the president,” in the absence of specific constitutional or statutory authorization, from whence does this “authority” come?

Is “judicial review” simply a power created by the federal judiciary by itself, for itself? If this is the case, are the other two branches bound by the pronouncements of this co-equal branch?

In other words, if the courts find something to be unconstitutional, is that finding merely advisory, or is it binding, on the other branches? Can the other branches come up with their own findings and act upon them?

Recently, presidential advisor Stephen Miller commented that the “Constitution was the supreme law of the land.” Note that he did not say that the Constitution,   “as interpreted by the Supreme Court” was the supreme law of the land.

Can a president, relying on the advice of his “brilliant lawyers” and convinced in his own mind that he has the power to do so, come up with his own interpretation of the Constitution and act upon it in defiance of the court’s interpretation?

Andrew Jackson, our president’s favorite president, came very close to doing precisely that in the forced removal of the Cherokee nation from Georgia to what later became Oklahoma.

Should our president defy the judiciary, what power does the judiciary have to block him? Alexander Hamilton called the judiciary the “least dangerous” branch of government because it had neither the “power of the sword” (the law enforcement powers controlled by the executive) nor the “power of the purse” (access to funds controlled by Congress) to enforce it decisions.

The power of the court rests on nothing more substantial than the willingness of the other branches to follow a more than 220-year-old tradition of deference to the court’s interpretation of the law and public support for its decisions, in other words, public pressure. If public opinion of the Roberts court is nearing the basement at about a 40 percent approval rating, it might not be wise to bet the farm on the public’s rallying to the court’s defense in the case of a showdown between the executive and judicial branches. The third branch, the legislative branch, has been broken for years as too many of its members care more about keeping their jobs than doing their jobs. It would likely be a non-factor in any presidential powerplay.

If acceptance of the ruling in Marbury v. Madison were to be aggressively challenged, the outcome could be far from certain.  A result putting Marbury v. Madison into question could lead to major chaos by kicking away one of the foundational supports of the entire judicial system to satisfy the druthers of a president who has demonstrated his predilection to operate in a chaotic atmosphere.

Hopefully, none of this will ever happen.

But what if it does?

Posted on by kenferriesblog

Putting the toothpaste back in the tube …

It’s about those Trump yard sign slogans we are seeing around town.

To date, I have noticed three variations. The first, and to be fair, I think the rarest, is simply crass and in poor taste. I mean, what does “No more bull—t” add to the public discourse surrounding this presidential election?  It didn’t do much for us Boomers when we used it 55 years ago, and I don’t think it will do much for today’s imitators either. Come to think of it, assuming that the amount of bovine manure being spread around is relevant, Democrats could appropriate the same theme with greater cause. Thankfully, they have so far resisted the temptation to play the potty mouth card as a part of their campaign.

The two more common calls to action, “Make America Great Again” and “Take America Back,” are more interesting because one is unnecessary, and the other is an impossibility.

As to the first, I must admit that I failed to get the memo advising me America was no longer great. Here I am, drifting through life, fat (but not grotesquely so, thank you very much), dumb, and happy, thinking that the lowest unemployment rate in memory, the strongest stock market in history, more Americans having access to health insurance than ever before, the strongest military on the face of the earth, allies willing to work with us to achieve common goals, an industrial sector on the rebound, the strongest economy among all first-world nations, an inflation rate in decline, much overdue infrastructure projects being undertaken, still being the country pesky undocumented aliens are willing to risk their lives to get into by any means possible – even illegally – are good things. In my innocence, silly me, I believed all were indications of a country already great by nearly any measure.

There is a contrary view, promoted by MAGA-Republicans, a certain presidential candidate, and a vast right-wing echo chamber, that sees America as a country in carnage that can be saved only by them and only if their prescription for 2025 and beyond is followed to the letter.

If they and their fellow travelers are the source of a voter’s information, it is understandable for the faithful to wallow in the doom and gloom.

As to which view is more accurate, it must be pointed out that the flagship network pushing the carnage scenario has already been adjudged liable for millions of dollars for disseminating “news” coverage that it knew, at the time, to be false. On the trustworthy meter, draw your own conclusions.

The last slogan is probably the most interesting. “Take America Back” generates two immediate questions: take it back to “when?” and take it back for “whom?”

On the “when,” my money would be on the Fifties and Sixties. American industry dominated the world. Jobs were not hard to come by, and if they were lost during a recession, more opportunities would be coming down the pike. All sorts of modern conveniences made their debut and were gobbled up by a public who had surplus money to spend as the result of union-driven wage increases in the manufacturing sector. Middle class families were anxious to put the privations of the war years behind them. Televisions ads featuring women typically portrayed them in non-threatening “housewife” roles emoting over the latest gizmo due to go on the market. Despite seething discontent under the surface, minority groups largely kept quiet and gratefully took whatever scraps fell off the prosperity table. Amazingly, some of the minority groups being dealt with today had yet to be labeled as groups back then, so far were they beneath the public’s consciousness.

News flash: The conditions that made these halcyon days possible no longer exist. They’re not coming back.

In the aftermath of World War II, the only intact industrial and manufacturing base was our own. All the others had been bombed, blitzed, or even nuked, into irrelevance.

America is no longer the only player on the board. There are multiple competitors, including economic giants in Asia and the Far East that were economic nonentities not so many years ago.

This republic of ours is still great, but it’s no longer the only giant astride the world. Nor, if a prosperous world economy is a goal to be pursued (not to mention additional markets for our goods), should we want it to be.

Finally, who is the intended beneficiary of taking America back in time?

I suspect the answer is supplied by the title of one of the television shows popular at the time: “Father Knows Best.”

Under this theory, the answer to the future is the past. What apparently is envisioned is a return to a country where power resides in the hands of wise men, mostly Caucasian, married (with children), Christians, preferably Conservative Christians, who are convinced that our Republic has had its day and who are willing to sacrifice said Republic for a return to the halcyon days of yore.

Minimize the role of women and minorities, and, assuming elections will be used at all to put some lipstick on the pig, rig them to produce a desired result.

Can it be done? Will it be done?

No.

Think of a tube of toothpaste.

Think of our world as the product of squeezing toothpaste out of the tube. To “Take America Back” would entail trying to shove some toothpaste back into the tube.

Try it.

To say it can be done is a lie. To promise voters you will deliver on the lie is an even greater deception.