Art. III is the shortest article in the Constitution. It establishes a “Supreme Court” and a Chief Justice, much the same way Art. I establishes a “Speaker of the House.” The duties and even selection of the Speaker are then left to the House .What really blows my mind is that in US constitutional law you actually don’t know what is the President’s “function and authority” bc there’s no actual list in the constitution of things the President can and can’t do. They can basically do whatever the other 2 Branches let them https://t.co/p8nZdQsPO3
— Alonso Gurmendi (@Alonso_GD) July 2, 2024
The Supreme Court is “supreme” over the legal system which article III leaves to be set up by Congress, along with the authority, jurisdiction, number of members, of the Supreme Court. Even the Chief Justice has no Constitutional authority, just a title. And the selection of the justices is left to the Senate and the Executive.
But the Supreme Court is not supreme over the Congress or the nation. Article I goes into great detail about the composition and powers and duties of the Congress. It provides less detail about the duties of the President, and even less about the Supreme Court. Except that both are accountable to Congress, with the President also (like Congress) accountable to the voters. The Congress establishes everything about the Supreme Court except its name. The Congress can also establish the President’s “function and authority” so long as it is not directly contrary to the Constitution. Although in some cases, like the War Powers Act, it has, by yielding Congressional authority to the executive.
With the opinion in Trump v U.S., the Court usurps Congressional authority to decide itself what the President’s “function and authority” are, and places that decision beyond the reach of any other branch of government. In other words, it sets itself supreme, not only over the judicial system, but over the Constitutional system itself. The decision process may be a deliberative one as it works its way through the judicial system, but as the decision in Trump shows, it doesn’t really matter what the lower courts say. All that matters is the opinion of at least 5 justices. 5 unelected justices who have declared they hold their offices for life and cannot be forced to retire, or even follow a code of ethics; a position peculiar only to the 9 on that bench.
And an authority that is anathema to the democratic republic established by the Constitution that establishes that Court, and subjects it to the authority of the Congress.
If a Democratic president and Congress don't impose a retro-active term limit that removes Roberts Alito and Thomas immediately, democracy is dead.
ReplyDeleteI am ever more impressed with how what Louis Boudin was predicting as early as 1911 has come to pass. Government by 9 "men" not of law because the Constitution says whatever at least five of them says it means and there is no way to stop that under the Constitution, especially as amended by the Marbury v Madison decision. They've repealed the Declaration of Independence, for the love of Mike. Three days before the 4th of July.