The Supreme Court Is Much Too Powerful

Authored by Ryan McMaken via The Mises Institute,

The current frenzy over the vacancy on the Supreme Court in the wake of Justice Kennedy's retirement highlights just how much power has been centralized in the hands of a small number of people in Washington, DC.

The left has grown positively hysterical over the thought of yet another Trump-appointed judge being installed, who could potentially serve on the court for decades. Right-wingers who claim the left is overreacting, however, are unconvincing. One can only imagine the right's reaction were Hillary Clinton president. She would have already had the opportunity to appoint Scalia's replacement, and we might now be talking about her nominee to replace Justice Ginsberg.

The right-wing media would be filled with article after article about how the new court would be a disaster for health-care freedom, private gun ownership, and, of course, the unborn.

But, as it is, we live in a country where five people on a court decide what the law is for 320 million people. And for some reason, many people think this is entirely normal. It's our own American version of the Soviet politburo, but few are even bothering to ask whether it's a good idea.

After all, if it makes sense for a small handful of people to decide law for the entire country, why even bother with a House of Representatives? Even the Senate — composed primarily of multimillionaires living full-time in Washington, DC, is is extravagantly "democratic."

The Myths Behind the Court

To combat the obvious absurdity of the Supreme Court's vast lawmaking powers, however, we have invented a number of myths designed to convince ourselves that the Court is not, in fact just another political institution. It is — we tell ourselves — something special. Something non-political.

But, as I wrote in “ The Mythology of the Supreme Court,” the idea of the court as a group of jurisprudential deep thinkers is a tale for little school children:

This view of the court is of course hopelessly fanciful, and the truly political nature of the court is well documented. Its politics can take many forms. For an example of its role in political patronage, we need look no further than Earl Warren, a one-time candidate for president and governor of California, who was appointed to the court by Dwight Eisenhower. It is widely accepted that Warren’s appointment was payback for Warren’s non-opposition to Eisenhower’s nomination at the 1952 Republican convention. The proposition that Warren somehow transformed from politician to Deep Thinker after his appointment is unconvincing at best. Or we might point to the famous “switch in time that saved nine” in which Justice Owen Roberts completely reversed his legal position on the New Deal in response to political threats from the Franklin Roosevelt administration. Indeed, Supreme Court justices are politicians, who behave in the manner Public Choice theory tells us they should. They seek to preserve and expand their own power.

In practice, the Supreme Court is just another federal legislature, although this one decides matters of public policy based on the opinions of a mere five people, most of whom spend their time utterly divorced from theeconomic realities of ordinary people while cavorting with oligarchs and other elites.

The court’s legislative power is matched by its political power since every vacancy on the court is a gift to the dominant political parties. Every time a justice dies or retires, the event provides political parties with yet another opportunity to issue hysterical fundraising letters to the more monied supporters and demand unqualified support from the rank and file while claiming the SCOTUS-appointment process makes the next election “the most important ever.”

It seems to bother few, however, that we live in a political system where the most important political and economic matters of the day — or so we are told — are to be decided by a tiny handful of people, whether they be the chairman of the Federal Reserve, five Supreme Court justices, or a president with his “ pen and phone.”

Just as it is supremely dysfunctional for a major economy to hang on every word of a central bank chairman, so too should it be considered abnormal and unhealthy for a country of 320 million people to wait with bated breath for the latest prognostications of nine friends of presidents in black robes from their palatial offices in Washington, DC.

The Court Is Just a Group of Nine Politicians in Fancy Robes

We’re told by pundits and politicians from across the spectrum how indispensable, awe-inspiring, and absolutely essential the Supreme Court is. In truth, we should be looking for ways to undermine, cripple, and to generally force the Court into irrelevance.

We ought to point out at every opportunity that the whole notion of judicial review, which is itself a total innovation and fabrication dreamed up by Chief Justice John Marshall. Absolutely nowhere does Article III of the Constitution (the part that deals with the court, and is half a page long) give the court the power to decide on what can be legal or not in every state, town, village, or business of the United States. Moreover, as Jeff Deist has noted, the Court’s powers we so blithely accept as fait accompli are mostly made up:

  • The concept of judicial review is a fabrication by the Court, with no basis in Article III.

  • Constitutional jurisprudence is not constitutional law.

  • The Supreme Court is supreme only over lower federal courts: it is not supreme over other branches of government.

  • Congress plainly has constitutional authority to define and restrict the jurisdiction of federal courts.

A Tool of Centralization of Power

But don’t look for many in Washington to admit this any time soon. The Supreme Court serves a very important function in centralizing federal power in DC and in the hands of a small number of senior federal personnel.

And how convenient it is for members of the ruling classes to influence and access these guardians of the federal government's intellectual respectability: the members of the court, presidents, and senators are all generally all members of the same socio-economic class, send their children to the same elite schools, and work and live together in the same small social circles. At the same time, this closed social and professional circle also helps to diminish the influence of those outside the Washington, DC bubble.

The Court in Its Present Form Could be Abolished Overnight

If it wished to, Congress could overhaul the Court this afternoon. Nothing more than simple legislation would be necessary to radically change or completely abolish the lower federal courts. Congress could decide what topics fall under the lower courts' jurisdiction, and thereby limit the Supreme Court’s jurisdiction as well. Congress could also decide that the Supreme court is made up of one justice or 100 justices.

Indeed, since the Supreme Court is nothing more than a legislature, why not make it one? Why not make SCOTUS a body of 50 “judges,” with the understanding that the Senate will not ratify any appointment which does not hold to the rule that each state gets a judge on the Court? Politics and ideology prevent this, but no Constitutional provision does.

“But the court would just declare all those reforms to be unconstitutional,” some might say. That is true, although to that, we need only paraphrase the (possibly apocryphal) words of Andrew Jackson: “the Court has made its decision. Now let them enforce it.”

The Court need not worry, though, since its can nearly always count on the support of the president and the Congress precisely because the Court serves an essential role in augmenting the power of the other branches of the federal government.

The Solution: Mock the Court and Seek to Undermine It

Far too often we’re told to revere the Court simply because it is enshrined in the Constitution. Slavery is enshrined in the Constitution too. Need we revere that?

Even if the Supreme Court’s current form were actually Constitutional (which, again, it is not) it would still be a obsolete relic of a distant age. The idea that the Supreme Court could somehow address all the legal issues arising in a vast confederation was absurd from the outset, but all the more so now. Recognizing this, the authors of the Constitution created the Court as a body designed to address only conflicts between states, or between individuals of different states. In other words, it was supposed to head off conflicts that could lead to crises between state governments; it was designed to prevent wars between states. Whether or not your local confectioner should bake a cake for gay couples wasn’t exactly at the top of the agenda.

Even in the late 18th century though, the Court's status as a tiny elite club required the creation of the myth that the court was somehow "apolitical" which was buttressed by the creation of lifelong tenure for judges, no matter how senile or out of touch. Otherwise, prevailing ideas of representation in government at the time would have never allowed for a political institution like the Court to gain acceptance. This can be illustrated by the fact that in 1790, Congress was far more "democratic" than it is now, in the sense that there were far more representatives per person than today. Elections in many state governments were annual affairs, and legislative districts very small by today's standards, ensuring that your elected officials lived in close proximity to you and were physically accessible.

In contrast to this, in 1790, there was one Supreme Court judge for every 600,000 Americans. Today, there is one Supreme Court judge for every 35 million Americans. Not even the Soviet politburo managed that level of non-representation.

On the other hand, there is no reason why a council of state governments could not be employed to address issues of conflicts between states, and the states (or even small portions thereof) — not nine political appointees — should perform the function of judicial review. This isn't the 18th century. Having delegates from a variety of diverse and geographically varied states remain in constant contact and regularly meet is by no means a logistical impossibility.

Even worse, many of the justices haven't had a real job in decades and have no idea how reality actually works. It's unlikely that the older members of the Court could even use Google to find a phone number on the internet, let alone understand the complexities of how modern people run their businesses, raise their families, or function in every day life. The Court is largely the domain of geriatrics who are paid generously to make complex judgments about a world they rarely engage and can scarcely understand.

If Americans want a government that's more likely to leave them in peace, they should ignore the pleas to elect another politician who will just appoint another donor or political ally to the court. Instead, state and local governments should seek at every turn to ignore, nullify, and generally disregard the rulings of the Court when they run counter to local law and local institutions where — quite unlike the Supreme Court — average citizens have some actual influence over the political institutions that affect their lives.


Lordflin detached.amusement Wed, 07/11/2018 - 22:13 Permalink

If you look at the operation of the Supreme Court in the early years it did not carry the he weight it does now. There were times the excutive branch bucked the Supreme Court when it felt the latter had over stepped its bounds. That left it to the legislative branch to impeach and convict if they felt the excutive branch had over stepped theirs. You know, back when we had this checks and balances thing going on...

In reply to by detached.amusement

MrAToZ Rapunzal Wed, 07/11/2018 - 23:26 Permalink

If the court is constructionist, it ceases to be a political entity (at least in theory). They are doing exactly what they are supposed to be doing. Why when SCOTUS is used for social engineering is it just powerful enough for the left?

This stupidity about balance is more Marxist diatribe. The left thrives and governs by judicial over reach. There is not supposed to be any "balance". There is supposed to be one kind of judge sitting on that bench, one who interprets the law as close as possible to the Constitution. That's the job. If a judge wants to stray into political territory, then he is wearing the wrong uniform. That judge needs to trade in the gown for a soapbox.

Put all strict constructionist judges on the bench and you build a firewall between government over reach and the citizenry. Notice how the left never addresses the fact that RvW is bad law and federal over reach, which is fact. They just want to keep their base ginned up. Due process just does not seem to matter. Deflect and deflect.

Articles like these always show up to sway the ignorant. They serve as insight into the twisted way the left views SCOTUS. More whining about the injustice of having to actually follow the law.


P.S. Screw Bill Kristol

In reply to by Rapunzal

are we there yet MrAToZ Thu, 07/12/2018 - 03:07 Permalink

Ruth Ginsburg after her aggressive chemo therapy has signs of 'chemo brain', which is common in the elderly receiving such treatment. Listen to her talk, even in controlled favorable settings. It is said that it is common for her to fall asleep in deliberations (no cameras allowed). Eventually a paparazzi may snap a shot of her frail body in robes, sleeping and drooling. Ginsburg will not last through Trumps second term mentally. Even before Trump, those around her suggested she should retire.

In reply to by MrAToZ

Keyser StackShinyStuff Thu, 07/12/2018 - 07:18 Permalink

Yet another in the long list of propaganda articles attacking the basic values on which the USA was created... Three branches of government, separate, independent, with their own charters... We see this constant attack by the left / globalists on the institutions and history of the country, undermining the very precepts on which the country was built... Where are we today? We have an inept legislative branch, hopelessly politicizes and hell-bent on dividing the country... We have a politicized judicial branch, aligning along party lines with members opening debating the validity of the constitution... We have a rogue POTUS attempting to ferret out the weasels that have embedded themselves in powerful positions for the last 70 years... We have an attack on the sovereignty of our borders... We have the top law enforcement agencies in the country politicized against one of the two parties to the point where they are ineffective... We have constant attacks on the constitution and it's amendments... And now we have an attack on the supreme court... These people hate the USA and want to change it forever... They are winning the propaganda war, will the win the hearts and souls of Americans? I hope not... 

In reply to by StackShinyStuff

vato poco Common_Law Wed, 07/11/2018 - 22:32 Permalink

the fucking lawyer john marshall structured Marbury v Madison to create power for the supreme court that wasn't in the Constitution: judicial review of the "Constitutionality" of this or that.

Jefferson should have had the son-of-a-bitch marched out at gunpoint and shot. He knew exactly what that ruling was: a trojan horse. I'll never understand why he let it stand.

the Constitution doesn't say "judges get to be the final arbiters - and thus, far and away the most powerful branch of govt.

godDAMN I hate lawyers

In reply to by Common_Law

Theosebes Goodfellow vato poco Thu, 07/12/2018 - 06:49 Permalink

Bitch as we may, the SCOTUS isn't about to change, (in structure at least), any time soon. So this guy thinks there should be more SCOTUS judges, none at all, what?

Do you remember what SCOTUS did when Congress found Holder in Contempt?

Nada. Personally I'd much rather see Congress get some teeth to their pronouncements and I'd like to see Justice officials and LEOs have to go to court when they fail to uphold the laws.

In reply to by vato poco

brianshell vato poco Wed, 07/11/2018 - 22:46 Permalink

The smut and blight that has invaded all area of our nation today is not just in government, not just in ideologies nor religion, it is a disease attacking the human spirit.

Long ago, someone wrote about the seven deadly sins. They envisioned a devil that entices us to be sinful. We would be wise to learn about these sins and avoid them like the plague.

In reply to by vato poco

NoDebt spanish inquisition Wed, 07/11/2018 - 22:25 Permalink

Yeah, well, people live a lot longer than they used to.  SCOTUS judges could be in there for 30-40 years now.  That makes them far more powerful than Congress (which is largely worthless at this point) and even the President (except insofar as that is the office that appoints them).

I could make the argument that the Judicial branch has effectively REPLACED Congress, if put to task.  For sure, it would be difficult to argue that Congress has not lost power to the other two branches over the last 4-5 decades.


In reply to by spanish inquisition

Ms. Erable NoDebt Wed, 07/11/2018 - 22:51 Permalink

The left is concerned that a court consisting of persons who interpret the Constitution (as opposed to re-writing it, as they have so many times in the past) won't inflict upon the populace a plethora of rights setting certain persons over others, or find rights that appear nowhere but in the whims of leftards and are not specifically delineated in that document.

In reply to by NoDebt

Cloud9.5 Lordflin Thu, 07/12/2018 - 07:17 Permalink

Jackson told the court to get off the bench and enforce its Cherokee ruling.  Lincoln started a rumor that he intended to arrest members of the court which was entirely believable after he had arrested legions of his political rivals both in and out of congress and state legislatures.  Clement Vallandigham comes to mind.  Roosevelt threatened to pack the court with new deal supporters.  American dictators have shunted the court off to the sidelines on numerous occasions.

In reply to by Lordflin

t0mmyBerg detached.amusement Thu, 07/12/2018 - 12:32 Permalink

Roberts should be either impeached or simply demoted from chief to a regular justice.  the obamacare opinion was just wrong on the law and dangerous from a constitutional perpective as it concludes there is not theoretical constitutional limit to congressional power, merely political limits.

but what puzzles me is the makeup of the court at this point.  if you look at the demographics of scotus page at wikipedia you see that there are 6 Catholics and 3 Jews on the court.  Kavanaugh is a Catholic so the makeup remains the same.  But WTF?  How do we wind up with 6 Catholics on the SCOTUS?  No WASPS, who were the founders of the country.  How is that possible?  Hell I would even take BASPS, though I think those may be few and far between.  Protestants in any event.

In reply to by detached.amusement

swamp Whoa Dammit Wed, 07/11/2018 - 23:58 Permalink

This dickhead thinks the the left media commie show frenzy reveals a Constitutional Supreme Court problem.


The left reaction is the problem. Not the Constitution.

SEVERLY flawed analysis for numerous reasons including the inability to discern left reaction from the principle of  Constitutional balance.  

What a shame and a sham from Von Mises. 

In reply to by Whoa Dammit

my new username Wed, 07/11/2018 - 21:49 Permalink

Wrong analysis.
The problem is that liberals want to re-write the constitution incrementally, without using the mechanisms of the Constitution - because this would require the States to buy in.
By appointing judges who are not "wise latinas" or rabid Jweish Marxists, Trump can reduce the law-making tendency of the Supremes, so that it gets back to the Constitution as (beautifully) written.

wisehiney Wed, 07/11/2018 - 21:53 Permalink

To see how far our dear black brothers have come.

Watch Birth of A Nation.

To see how far niggers have not come.

Watch the same.

Either way.

Be informed.

McDuff71 Wed, 07/11/2018 - 21:57 Permalink the next election, along with congress and the senate and then try to put your views into legislation - until then, suck it up!! ;))


"same as it ever was"

McDuff71 Juggernaut x2 Wed, 07/11/2018 - 23:08 Permalink

...well if it means having to win for the next 4 presidential terms earns the right to remix upon further retirements then i suppose not but then again...every dog has it's day and as such a new dog is immanently arriving...perhaps there should be maximum serving terms for these entities as well? - i wouldn't be against this to be honest....

In reply to by Juggernaut x2

wisehiney Wed, 07/11/2018 - 21:57 Permalink

For the dried up poison prune on the left......


Some Girls

The Rolling Stones

Some girls give me money
Some girls buy me clothes
Some girls give me jewelry
That I never thought I'd own

Some girls give me diamonds
Some girls, heart attacks
Some girls I give all my bread to
I don't ever want it back

Some girls give me jewelry
Others buy me clothes
Some girls give me children
I never asked them for

So give me all your money
Give me all your gold
I'll buy you a house at Zuma beach
I'll give you half of what I own

Some girls take my money
Some girls take my clothes
Some girls get the shirt off my back
And leave me with a lethal dose

Yeah French girls they want Cartier
Italian girls want cars
American girls want everything in the world
You can possibly imagine

English girls they're so prissy
I can't stand them on the telephone
Sometimes I take the receiver off the hook
I don't want them to ever call at all

White girls they're pretty funny
Sometimes they drive me mad
Black girls just wanna get fucked all night
I just don't have that much jam

Chinese girls are so gentle
They're really such a tease
Inside those silky sleeves

Give me all your money
Give me all your gold
I'll buy you a house at Zuma beach
I'll give you half of what I own
Yeah baby why don't you please come home

Some girls they're so pure
Some girls SO CORRUPT
Some girls give me children
I only made love to her once! ! ! !

Give me half your money
Give me half your car
Give me half of everything
I'll make you world's biggest star

So gimme all your money
Give me all your gold
Let's go back to Zuma beach
I'll give you half of everything I own

navy62802 Wed, 07/11/2018 - 22:02 Permalink

Wrong. I would argue that it's not the Supreme Court that has assumed too much power, but the federal judges scattered throughout the country. And this is a result of liberals seeking to implement their legal goals through the judiciary instead of legislating their agenda ... which would be a politically dangerous proposition. Effectively, the federal legislature has ceded its law-making power to the judicial branch. And then the liberals have put all their political power into appointing federal judges who will back the liberal legal view. These liberal judges effectively create the law that the spineless legislature refuses to try to create.

SantaClaws Wed, 07/11/2018 - 22:05 Permalink

This article is a few decades too late and a few dollars short.  If they had shut down the court before Earl Warren got in it could have made a very positive difference.

mastersnark Wed, 07/11/2018 - 22:09 Permalink

6 Catholics and 3 Jews interpreting the constitution that runs the USA.

Obviously, this is exactly what the delegates were hoping for on that glorious day of September 17, 1787.

Yen Cross Wed, 07/11/2018 - 22:16 Permalink

  Now that the SCOTUS is conservative slanted, in the "eyes of Libtards", I fully expect Maxine Waters vagina to prolapse on the House Floor.