The Myth of Supreme Court Omnipotence

Alexander Hamilton did not believe that Supreme Court was omnipotent - or at least, he didn't say so publicly. In Federalist 78, Hamilton described the power of the judiciary under the text of the 1787 Constitution, and why it was so weak in relation to the other two branches of government:

[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive.... liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments... [1]

Hamilton's view is constitutional theory; the most powerful power of government, the power to make law, would not be given to an unelected body. This concept of legislation by elected representatives (who are accountable to the people for their actions) is the heart of the 1787 Constitution (as amended by the Seventeenth Amendment), found in Article I, Section I - if you're looking for a "cornerstone", that's where you'll find it (the cornerstone itself has a cornerstone, the paragraph immediately preceding it, more commonly known as the Preamble).

In line with this idea that the most powerful of the powers should be in the hands of elected officials, we shouldn't be surprised to find that the 1787 Constitution gives Congress the power to limit the Supreme Court in a vast number of ways.

These rules, designed to maintain accountability, create a subtle, but real pressure, on the Court to "tow the line". The myth of Supreme Court omnipotence lies behind the false view that we have a "guarantee" that the Bill of Rights will be "enforced". If the Court isn't omnipotent in law, then the guarantee is illusory.

Let's see how omnipotent the Court is. We'll start with the number of members of the Court. Many people believe that this number is fixed for all time, which would prevent encroachments on the judicial power. But this isn't true.


The Supreme Court will consist of nine judges.
For now. But this is due to the power of Congress, not by Constitutional direct allocation. The Supreme Court was established with 6 members in 1789, reduced to 5 in 1801, increased to 7 in 1807, increased to 9 in 1837, increased to 10 in 1863, reduced to 7 in 1866, and increased to 9 in 1869. [2] There is no reason why the membership of the Supreme Court can't be decreased to 1, or increased to 500, and in the process, no reason why Congress cannot appoint judges who will carry out their will under threat of impeachment. This ability to change the number of judges decreases the power of the Court and increases the power of Congress. See 28 U.S.C §1.


The Constitution refers to the members of the Supreme Court as "justices".
No it doesn't. Expect judgment, not justice.


Judges on the Supreme Court serve for "life".
There is no definite term length indicated in the Constitution for the Supreme Court, but this doesn't mean "life". Under Article III, Section I, the term of the judge is not for "life", but for "good Behaviour", and judges can be impeached at any time for "bad" behavior (as determined by Congress).


The Supreme Court must meet every year.
While Article I, Section IV, Clause II says that the Congress shall assemble "at least once in every Year", there is no such provision for the Supreme Court. Under the authority of the "Necessary and Proper" clause in Article I, Section VIII, and the appellate jurisdiction regulation in Article III, Section III, Congress currently begins the session on the first Monday in October (see 28 U.S.C §2), but it doesn't have to. It could begin the next session on the last Monday in October, year 3963.


Under the Constitution, the Supreme Court session
must be for a fixed length of time.
Nope. There's no Constitutional provision that the Court's session must even be a session of significant length, nor that sessions held be of significant value. In fact, Congress has the power to shut down the Court entirely! Article I, Section IX, clause VII allows no money to be drawn from the Treasury except that which is appropriated. Consequently, Congress can withhold all funds from the court, other than the salaries of the judges, which cannot be reduced during their tenure (Article III, Section I), but can be reduced thereafter to $1, or even a penny. With no way to conduct legal research, no lights to see by, and no guard to unlock the door to the building, there would be no significant session.


The Supreme Court has the power to veto Federal laws.
No. Under the Constitution (and the laws written by Congress), only the President has the power to veto a law: and even then, the law goes back to Congress, which can re-pass the law over this Presidential veto. The Supreme Court only has the power to release prisoners convicted of violating unconstitutional Federal laws. This authority is implictly granted by the Constitutional stricture that judges must take an oath of office to support the Constitution, and by the existence of the Bill of Rights, which limits the power of Congress to legislate in certain areas.

Note, however, that this "safety-valve" applies only to the
immediate case before the Court! This local declaration of unconstitutionality (this case) isn't the same as a global declaration of unconstitutionality (all cases). Person after person can be brought up before the Court under the same unconstitutional law, and each person must be "let off" on an individual basis - as it turns out, however, only those who can afford to mount a protracted legal battle have the change to fight a law on the basis of unconstitutionality.

Constitutional analysts will here note a potential flaw in the Separation of Powers concept: the existence of two-tiered tailor-made protection, a double double standard. Not only is
accusation selective, but so is defense of accusation. That is, the Executive can decide to arrest A , B, and C (but not D and E), and the Judiciary can decide to hear the case of C only (not A, politically incorrect, and certainly not B, who couldn't afford to get to the Court in the first place). So A & B go to jail, while C, D, & E go free.

You'll note that the First Amendment has yet another "loophole": the First Amendment declares what laws may not be legally passed, but does not provide a
remedy for the contingency of "what happens when the First Amendment is violated?" There is no Federal law (nor Constitutional provision) providing a penalty for violators, nor a provision stating that if a Supreme Court judge says "X is unconstitutional", Congress is obligated to strike that "law" from the books. The Marbury v. Madison decision, which some see as granting this power, is not a "law" - it is an "opinion". Laws are made by Congress within the parameters proscribed in Article I and the Bill of Rights, and "opinions" by judges (or any other citizens) to the contrary cannot possibly act to veto these laws - at least, under the 1787 Constitution. More on this later.


The Supreme Court has the power to re-write
"inconvenient" provisions of the Constitution.
There is no such language in Article V of the Constitution, and no possible Congressional law that could give the Supreme Court this power. Any such power would have to be created by Constitutional Amendment.


The Supreme Court has the power to make law by precedent.
Article I, Section I of the Constitution vests "all" legislative power in "Congress", and none in "the Supreme Court". The Supreme Court has no lawmaking authority. The separation-of-powers destroying notion of judge-made law, called "common-law", was itself obliterated by the Constitution. Indeed, as Madison wrote in a letter to Peter Duponceau in August, 1824, "it cannot well be supposed that the Body which framed [the Constitution] with so much deliberation, and with so manifest a purpose of specifying its objects, and defining its boundaries, would, if intending that the Common Law shd. be a part of the national code, have omitted to express or distinctly indicate the intention." [3]


We have the right to be heard in the Supreme Court.
Well, few can afford the process of appealing all the way to the Supreme Court, a process that can take years. This statement is not supported by the Constitution, nor by Congressional law, nor by the Rules of the Supreme Court itself. According to Rule 17 of the Supreme Court (effective June 30, 1980), "[a] review on writ of certiorari is not a matter of right, but of judicial discretion." [4] That is to say, the Court will recognize those "rights" it chooses to recognize. While the First Amendment discusses a "right to petition for grievances", it does not say that the Court must hear the case, only that you have a right to petition the Court to hear the case. The Supreme Court will accept your petition, then file it in the circular file if it has bigger fish to fry. This seems to lend credence to the omnipotence myth, but see the next comment.


The Supreme Court has jurisdiction over every law of Congress.
A "quick-and-dirty" reading of Article III may lead one to that conclusion: there we find, in Section I, that "The judicial Power shall extend to all Cases... arising under this Constitution [and] the Laws of the United States... " But that's not the end of the matter. When we move to Section II, we find that this jurisdiction is qualified by these words: "In all the other Cases before mentioned, the supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make".

Here's where the myth of the "guarantee" is obliterated forever; not only does the Constitution provide for no
enforcement of the Bill of Rights, nor a penalty for those officials who violate the Bill of Rights, nor even a right to have one's case decided in case of rights violation, there is even what many will see as a "fatal flaw" in the 1787 instantiation of the separation of powers concept:

Congress can simply decide, when it passes an Unconstitutional law, to simultaneously withhold jurisdiction from the Supreme Court, preventing any judicial remedy for violations - Congress has the power to, on a law-by-law basis, effectively write Article III out of the Constitution!

For example, in the body of a bill banning the publication of "anti-government sentiments" would be this provision: "the Supreme Court has no appellate jurisdiction over any case arising from this legislation". While the Court must obey the Constitution, the Constitution also says that the Supreme Court has
no obligation or power to hear all cases involving unconstitutional laws!

To some, this idea of withholding jurisdiction of subject-matter is a "fatal flaw" in the Constitution; to others, it is a "safety-valve" against judicial usurpation of power. There are good arguments for both points of view. But however you want to characterize it, the power of Congress to prevent the Supreme Court from deciding the unconstitutionality of a law isn't just a paper tiger - this tiger bit. The myths tell us the Court is all-powerful, but the reality tells us otherwise.

The case was Ex Parte McCardle, 7 Wall 506 (1869), required reading for first-year law school students around the country. Seeking to protect blacks and federal officials in the South from harassment, Congress passed the Habeas Corpus Act in February 1867, which expanded the Supreme Court's jurisdiction to review denial of writs of habeas corpus. [5]. After a round of post-Civil-War political bickering, Congress turned around and repealed the portion of the act which extended the Supreme Court's appellate jurisdiction over habeas corpus writs on March 27, 1868, over President Johnson's veto. [6]

This case came about when McCardle, a southern editor, was arrested for his anti-Reconstruction writings. He took his case to the Court. A year later, on April 12, 1869, Chief Judge Chase spoke for the Court, holding (quite properly) that Congress had removed the Court's jurisdiction over the McCardle case :

The provision of the Act of 1867, affirming the appellate jurisdiction of this court in cases of habeas corpus, is expressly repealed. It is hardly possible to imagine a plainer instance of positive exception.

We are not at liberty to inquire into the motives of the Legislature. We can only examine its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.

What, then, is the effect of the repealing Act upon the case before us? We cannot doubt as to this. Without jurisdiction the court cannot proceed at all in any cause...

It is quite clear, therefor, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer. [7]

In Daniels v. Chicago & Rock Island Railroad Co., 3 Wall 250 (1866), the court reaffirmed the legitimacy of this power, holding that the power of the Court was "wholly the creature of legislation." [8]

If we view the text of the Constitution as controlling our government, we can see that the Supreme Court is far from the "guarantor" or "enforcer" of the Bill of Rights in the abstract; rather, it is allowed to enforce the Bill of Rights provided that Congress approves. The sad fact of the matter is that when we look to the text of the 1787 Constitution, we find that our "cornerstone [sic] of democracy [sic]" is a paper tiger -fierce on the page, toothless in the cage.

There is one final myth we'll explore; that


The Supreme Court will enforce the First Amendment when Congress violates the Amendment and has not removed Supreme Court jurisdiction over the Amendment.
We know what the First Amendment means to us.
Let's see what it means to the Supreme Court.


The Supreme Court vs. The First Amendment

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1 78 The Federalist Papers 393-4 (Bantam) (footnotes omitted).
2 Guide, p. 958.
3 Records of the Federal Convention of 1787, Supplement, ed. by James Hutson, p. 314 (Yale University Press: 1987).
4 Guide, p. 980.
5 Guide, pp. 664-6.
6 Guide, p. 258.
7 Guide, p. 258.
8 Guide, p. 258.