I’ve largely avoided writing about politics lately largely because there isn’t a lot of moral or ethical clarity for me to be encouraged by. Though I am in disagreement with many of the actions of our President and Congress, I can’t get too angry about what happens. Were the political situation reversed, very little would be different. Sure, tax cuts and things might have been very importantly different, but still the primary goal of those in power would be to keep it. But yesterday’s 5-3 (Roberts recused himself) ruling by the Supreme Court that President Bush’s special tribunal to try Guantanamo Bay detainees was illegal is probably the most encouraging news I’ve heard from Washington in a long time.
Yesterday’s decision is being called a rebuke of the President, and a restriction of his authority in his War on Terror. That’s exactly what it is. SCOTUS ruled that a President who has declared a never-ending war still has to answer to the laws of the land, or at least those of his own military. He has to uphold the Geneva Convention, even though those he is attempting to try in his special courts did not do the same. I am encouraged not because I think any lasting damage will be done to the President’s image (I think that the public will largely view this ruling as irrelevant to their judgments of the man), but because it keeps in check his power, and that of his office. Even if you don’t agree with my political views, you might agree that limiting the power of the President in a permanent state of war will ultimately benefit all of our rights. If you don’t agree with that, well it seems to me that you probably also don’t buy that old saying about power and how it corrupts. Get out of denial.
The Supreme Court holds a unique position in our tripartate power-sharing system because they do not need to be elected. The election system may seem to be what preserves our democracy, but the way it is implemented leads to professional politicians unable to take a strong stand if that position might somehow be used against them in the next election. The Supreme Court, on the other hand, needs answer only to the duties outlined for it in the Constitution. If any of the three parts of our government are working much as the Founders’ intended, it is SCOTUS (sorry for the political-junkie jargon acronym, it’s just quicker than writing Supreme Court each time). That last sentence is a hugely controversial statement, so let me defend it.
Critics argue that the so-called activist courts have greatly over-reached their given powers by effectively creating legislation, rather than interpreting existing legislation. I am not enough of an expert to cite specific cases in order to test this supposition. Nor do I even have a good grasp of the historic power of SCOTUS and how that has changed in the last century or so. But, I can defend my assertion by saying that, as the powers of the Presidency have grown, and as the reach of government as dictated by the Legislature has expanded, SCOTUS has kept pace. It has served as a very effective check against abuses of power (be it the legislature in the case of Civil Rights, or the President in this most recent Guantanamo detainee case), and has done so by allowing its role in our government to change.
SCOTUS is widely reviled, and highly-sought after by those wishing to push their own agendas. It is seen as sometimes the only mechanism for seeking change. This isn’t because the Supreme Court “legislates from the bench” or any other such catchphrase, but rather because it is willing to make hard decisions in the name of upholding and interpreting laws. The current President seems far more interested in advancing his ideological agenda than in actually governing our nation (witness a never ending string of hack political appointments, far worse than recent presidents), and the Legislature has yielded so much power to the President in the last decade that they now exist only to insert pork into appropriations bills and get re-elected.
But the Supreme Court has remained stubbornly outside of the control of those branches, and in so doing has managed to piss off most every player in the game of politics. That’s probably a good thing. I’m sure it will start to piss me off more and more now that its justices have become more conservative, but in the end I know that it will still be more an advocate for my rights and interests than any of my elected representatives. That’s sad.
“But the Supreme Court has remained stubbornly outside of the control of those branches, and in so doing has managed to piss off most every player in the game of politics.”
That is the important key. As we have witnessed in the past 4.x years, powerful and terrible things happen when Government works together and gets along. Many people say that if government is constantly bickering and fighting with itself, change takes too long to happen. I say, “Asolutely!” That is the best way for government to function! Without debate (the result of sides being pissed at each other), proposals and bills are never fully thought through before being brought to a vote; example: Patriot Act.
Hey Anthony! Nice DI article by the way, and I’m looking forward to more 1491 articles. I currently have a hard time believing that the native populations were bigger than Europe (in North America alone at least) but I am looking forward to seeing what the book will present.
A technical point: it’s arguable to say that the founding fathers designed the Supreme Court to work as it is today, because the constitution doesn’t actually provide for any checks and balances at all in terms of the SC having the power to check the Congress or President. They gave themselves that power in 1803 in Marbury v. Madison, by which James Madison (obviously) and Thomas Jefferson (current President, also obvious) as well were both opposed to the S.C. having that power (two very important Founders indeed). Jefferson had argued that to give the courts such power would effectively create an oligarchy because they could just do whatever they wanted without consequence. When the decision was rendered, Jefferson had to choose either to go with the decision or send in troops to literally dissolve the S.C., since he considered the SC to be usurping constitutional powers and had the authority (and duty) as Executive to use military force to uphold the constitution and laws with troops. And, the structure of the SC was constitutionally up to congress anyway, so they could legally just reshape it to make a new one. In the end, he opted to honor the decision, and most Americans are comfortable with this today. However, even though the courts generally use their power only to make appropriate decisions, many times in history the SC has used judicial activism anyway. Even if you don’t think that recent decisions on eminent domain or separation of church and state (a judicial term, not a constitutional one) are activist, you have to agree that certain post civil war era decisions were based soley on racism and had to be later overturned.
Ok well I said way more than I wanted, but my point is that the SC today is most likely not as how the Founders envisioned it as a whole, but they may not necessarily be opposed to its current role in goverment.