Supreme Court defies Congress

 

Supreme Court defies Congress

Judicial scope needs limits

 

Gordon L. Weil

The real American Revolution was the Constitution, not the War for Independence.

The republican form of government was revolutionary.  Though the U.S. wasn’t history’s first democracy, there was nothing else like it.  Not wanting an all-powerful monarch, the Framers divided the government into three balanced branches, each with checks on the others.  It was a clean break with the British system.

All right, you already knew that.  The news is that it’s not working.

In Britain, Parliament has complete authority to say what the law is.  It can enact laws that are considered to make up the British constitution.  It’s often said that the U.K. does not have a written constitution.  That’s not correct; the constitution is made up of specific laws that govern the country.  For example, the U.K. has a Bill of Rights.

The courts there can interpret and apply the laws and set precedents, but they cannot declare unconstitutional a law passed by Parliament.  Courts accept laws as being constitutional; they may be changed by an Act of Parliament.

The American Constitution does not give the Supreme Court the power to declare unconstitutional laws passed by Congress.  In 1803, the Court itself ruled that it had such power and its ruling has always been accepted.  However, the Constitution gives Congress the authority to pass a law amending or even eliminating that power.

If the Supreme Court finds a law unconstitutional, it effectively repeals the law.  This is an obvious departure from the British system, and gives the Court the last word in government.  While the Court supposedly judges laws based on constitutional or legal principles, it may make political judgments, dress them up as legal, and overrule the president and Congress.

That just happened.  The Court nullified one of the historically most important federal laws, relying on the political judgment of a majority composed of six justices.

In 1965, bipartisan congressional majorities overwhelmingly passed the Voting Rights Act.   While the Fifteenth Amendment had given African Americans, most formerly slaves, the right to vote, many state laws continue to make their voting impossible.   A century after the end of the Civil War, the VRA gave the federal government the tools to make that right real.

The Supreme Court ruled that the VRA was a lawful way to apply the Fifteenth Amendment, assuring access by Black to voting.  The VRA has been amended five times, most recently in 2006, to expand its coverage and effectiveness.

But, in two rulings a majority of the Court, under Chief Justice John Roberts, has stripped the VRA of virtually all its powers.  The Court’s reasoning has been that the law discriminates in favor of racial minorities, which is not allowed by the Constitution, and must be ended when, in its judgment, special treatment is no longer needed.

In its first ruling, issued in 2013, the Court ended federal government supervision of elections where racial bias existed, because it found that such prejudice had been largely eliminated.  This action was like deciding the police were no longer needed, because they had suppressed crime.  It patted itself on the back for ending discrimination.

Just seven years after Congress extended federal supervision, the Court had repealed it.  The ink was barely dry on the ruling, when some states began removing Blacks from voting access.  The Court could readily see its judgment was wrong.  It didn’t.

Where the effect of state laws caused discrimination against Black voters, the VRA said they should be overturned.  But last week, the Court majority decided that the state laws must openly intend to discriminate.   It had ruled that gerrymandering districts for political purposes was constitutional, so state legislators have only to avoid mentioning race.

Louisiana, the state involved in the case, moved promptly to eliminate at least one congressional district represented by an African American.   The likely result is there will be fewer minority members of Congress.  The Court selectively ignored the obvious in favor of its opinion of how well the VRA had worked.

The judgment on whether the VRA was still needed is clearly political, based on nothing more than the opinions and ideology of six unelected people who are empowered to overrule legislation voted and signed six times by presidents of both parties.  This is too much judicial power.

The Court’s powers should be brought back into line with a balanced government.

The Court could be enlarged to assure a wider range of views.  As I have previously noted, the Republicans have “packed” the Court, so the Democrats could “unpack” it.   A mechanism exists for creating temporary slots on the Court, allowing more justices to be added.

Or Congress could decide to create a hybrid between today’s Court control and the British system, leaving the ultimate decision on constitutionality to be made by an elected Congress.