The Integrity of the Court
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority – US Constitution, Article III, § 1
John Marshall was the fourth Chief Justice of the Supreme Court. He was a Federalist, appointed by President John Adams. After the election of 1800, the Democratic Republicans were in power, with Thomas Jefferson as the new President. While the Supreme Court was a theoretically a co-equal branch of the Constitution, its position as the third branch (Article III) symbolized its standing – third in line.
Every branch of government determined what the new Constitution meant, and they did it with every action they took. The Congress ultimately had the power of the purse, the ability to pay or withhold payment for government actions. The President had the “trappings” of government power; the military and the Federal law enforcement agencies. But what did the Supreme Court have?
They didn’t have prosecutors, those were in the Executive Branch. The Court could only hear cases brought to them; it could not make an independent determination of law without a case. They had no enforcement mechanism; the Court could make a ruling, but another branch had to enforce it (thirty years later President Andrew Jackson would supposedly say about the Cherokee removal: “… Marshall made his decision, let him enforce it”.)
They had no control over their membership: the President appointed Justices and the Senate confirmed them. They had no control over their number; it started as five, then seven, then nine, then ten, back to seven, and finally in 1869, seemed set at nine. But Congress can still determine that number, and it can be changed by their will (with the current controversy the Court membership should keep that in mind.)
The power of the Supreme Court was shrewdly established by the decisions of Chief Justice Marshall, with the most famous being Marbury v Madison. In that decision, Marshall established that the Court could determine the Constitutionality of the acts of Congress.
While we think “our time” is the most political and controversial ever, the election of 1800 was just as ugly, and just as divided as we are today. On losing office, President Adams tried to “pack” the judiciary with Federalists (including Marshall himself.) The “last minute” nature of this action (they were called “Midnight Judges”) meant that not all of the legal paperwork appointing these judges was delivered before Adams left and Jefferson took charge. Jefferson instructed his Secretary of State, James Madison, not to deliver them.
Marbury went to Court to get his appointment, legally signed and sealed by the former President. Marshall wrote that Jefferson was wrong in not delivering the document, a statement that could have led to a crisis if Jefferson defied the Court.
But Marshall went onto say that the law under which Marbury was suing in Court, passed by Congress, unconstitutionally expanded the power of the Court. He then declared that act of Congress unconstitutional, gaining the power of judicial review, determining the meaning of the Constitution, for the Court.
Marshall got his “shot” at Jefferson, and he also got his “shot” at the now Democratic-Republican Congress. But most significantly he established the role of the Supreme Court in our three-branch system, in a most highly charged political atmosphere. He did it without an Army, and through the power of his decision. And, like it or not, his decision, and the many others he wrote in his thirty-four years at the helm, established the third branch of government.
Politics and the Supreme Court are old friends. The controversy over the Kavanaugh nomination may seem unprecedented, but the Court was born in political turmoil, and its power forged in the first peaceful democratic transfer of power in 1800.
Today’s controversy, combined with the long brewing battle over the makeup of the Court, is not much different from the “Midnight Judges” of John Adams. There has been a long-term strategy of the “right,” represented by the aptly named Federalist Society, to gain control of the Court. They are on the cusp of success, Kavanaugh’s confirmation represents that fifth and decisive vote on this nine member court (the left has done their best as well, with four “liberal” justices already seated.) Just as our Congress and our politics have lost a “middle ground;” so has the Court.
What Kavanaugh did as a younger man is important. But, if he committed those alleged actions, what is so much more important is what he is doing now. His denying that these actions even occurred, if they actually did occur, is perjury. Integrity means accepting responsibility for past actions: and integrity is what the Supreme Court stands upon. Kavanaugh’s integrity is in question, either he is being falsely accused, or he is lying now.
But politics matter too, just as they did in 1800. If Kavanaugh lies tomorrow to the Judiciary Committee, don’t be surprised if a future Congress doesn’t reopen the case, and potentially remove Kavanaugh from the bench. And that’s the risk that the Republicans are taking, as this nomination no longer is about Roe v Wade or the influence of the Federalist Society. It’s now about the honesty of the nominee: and if he is dishonest, that opens a future door to his removal, and a change in the balance of the Court once again. Democrats know that too, which is what makes tomorrow’s testimony, on the record, so important.
