By Adam Bitely
When the Founders wrote the Constitution, they intended to signify the importance and power of each branch of government in the order that the powers are granted. The Founders saw the legislative branch as the most powerful of the three with the executive being weaker and the judicial branch being the weakest. It was the intention of the Founders for the judicial branch to serve as a final backstop against oversteps of government power.
The construction of the judicial branch is loose. Section 1 of Article 3 explicitly creates a Supreme Court, but leaves Congress with the authority to create an inferior court system. Further, the Constitution does not mandate a specific number of justices to serve on the Supreme Court. Theoretically, there could be only a single member of the Supreme Court, or many more than the current number of nine.
Section 2 of Article 3 grants the Supreme Court its powers which are limited to all cases that arise under the Constitution, the laws of the United States or between two or more states, and to cases that involve maritime or international jurisdiction.
It wasn’t until 1803 that the Supreme Court had the power of judicial review, which was a product of the landmark case Marbury v. Madison. Judicial review simply means that the Supreme Court can overturn a law that they rule is in direct violation of the Constitution. This is a very powerful check against the legislative branch.
The Supreme Court can be a tool to stop bad legislation that is in direct conflict with the Constitution or it can be a weapon to enforce questionable legislation. In the 1930’s, President Franklin Roosevelt attempted to increase the number of justices on the Supreme Court to ensure that none of the legislation or policies he supported were overturned. This court-packing scheme never happened in the end but the attempt to control the Supreme Court sent a chilling message to the Court about their independence.
Today, the Judicial Branch is viewed as a way to enforce or overturn laws passed by Congress. Currently, there are major court cases that could make their way through the judicial system and into the Supreme Court regarding the recently passed ObamaCare. There is a high likelihood that the Supreme Court could overturn ObamaCare on the basis that it is in direct conflict with the Constitution—which many states Attorneys General are arguing in federal court.
In Virginia, Attorney General Ken Cuccinelli is leading a case against ObamaCare that argues that the law passed by Congress and signed by the President is in violation of the Constitution and a law in Virginia that bans an individual mandate on Health Care purchasing. Specifically, Attorney General Cuccinelli argues that the individual mandate requiring U.S. citizens to purchase Health Care is in direct violation of the Commerce Clause and Virginia state law. Cuccinelli said on the matter, “If the individual mandate is found to be unconstitutional, as Virginia says it is, the whole bill falls. The whole thing.”
While the case brought forth by Cucinelli is still in federal district court, it could soon hit the Supreme Court, where the judicial branch could overturn the law passed in the legislative branch—checks and balances at work.
There are many critics on both sides of the aisle that say the Supreme Court has been an activist court for one ideology or another. For instance, conservatives argue that Roe v. Wade was a liberal activist court decision in favor of abortion. And liberals argue that in the District of Columbia v. Heller decision that the Supreme Court was guilty of judicial activism in favor of conservatives that supported gun rights. In the past 18 months, Obama has already chosen two new members for the Supreme Court replacing liberal justices. Should a conservative justice leave the Court during Obama’s tenure, the Article I provisions for Senate confirmation of Supreme Court justices will be headline news all over the world.
While many people pay less attention to the Supreme Court than the other two branches of the federal government, the power that lies in the Court is no small matter. The Founders vision that a Supreme Court could be the last hope to stop an overbearing legislature or executive branch is as true today as it was in 1789.
Adam Bitely is the Editor-in-Chief of NetRightDaily.com.