Here’s an interesting look by Isak Tranvik about the Supreme Court and democracy. http://www.startribune.com/how-the-supreme-court-dilutes-democracy/305911741/  He argues that allowing a small elite, un-elected group of lawyers to decide the fate of legislation is not democracy and the will of the public as expressed through their elected representatives.  How did we get to this point?

In human history we’ve always needed a detached, independent group to decide disputes:  who’s at fault?  Who owes the money?  Who’s been illegally fired by an employer?  We still need this function from our court system.  But early in American history, something unusual happened.

I know this sounds ancient, but hang in there with me.  In 1803 the Supreme Court decided the case of Marbury vs. Madison.  For the first time in the new democracy, the Supreme Court said it had the power to review legislation to determine if it agreed with the Constitution.  If the laws didn’t, the Supreme Court also had the power to over turn the new laws.

Where did this power come from?  The Supreme Court itself said it came from Article III of the Constitution.  In reality, the politically opportunistic chief justice, John Marshall, made it up—but no one challenged him!  The principle remained there to create the monster we have today.  And we all still accept it.

Tranvik, in his article, uses an example—the Affordable Care Act.  (Obamacare)  Whether you agree with it or not, the legislation has been worked on, argued about, and finally passed after several years.  Thousands of citizens and elected representatives took part in this process.  The Supreme Court will make a decision which could kill the entire program.  A handful of un-elected, elite lawyers will control the outcome all by themselves.

Is this fair?  Is it good for democracy?  Is it even democracy?

Next post—Has anyone ever tried to stand-up against the Supreme Court?

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One of the most worrisome aspects that the blog raises for me is a warning that the fundamental respect for the Supreme Court could be in jeopardy.  Thanks to the leadership of Chief Justice John G. Roberts, Jr., I feel better now.  Let me explain…

First, will you hang with me for a quick history lesson?  When Andrew Jackson was president, there was an indigenous Indian tribe in Georgia who had their land “appropriated” by new, white immigrants.  When the Indians used the courts of Georgia to protest, the state courts ruled for the white immigrants.  The Indians appealed to the Supreme Court who reversed the Georgia courts, telling the new settlers to give-back the land to the Indians.  Georgia refused and so Andrew Jackson was called upon to use the military to support the Supreme Court ruling.  He also refused and told the Indians to leave–eventually using the same army to send the Indians west of the Mississippi.  The most interesting point for us in this blog are the words Jackson used about the Supreme Court.  He said: “Let them enforce their ruling if they can.”  Of course, the Supreme Court doesn’t have an army and therefore, couldn’t enforce anything.

I’m concerned with the effort on both the part of liberals and conservatives today to pack the Supreme Court with “their” justices–people who will, hopefully, make decisions that are skewed to a political party’s agenda or even to a particular political position, ie, abortion.

In the short run, that would appear to “save the country” from the “other side’s” crazy agenda.  In the long run, it could be the down-fall of our entire judicial system.  As you’ve seen, the Supreme Court cannot enforce any of their opinions–Jackson was right:  they don’t have an army.  All they have is the respect of the American people that the Supreme Court is an independent body above the sway of politics and therefore, above the political winds.  If the court becomes too political, they will lose the only power they have: persuasion.

If the American public comes to believe that the court rules on issues based only on the political leanings of its members, the Court will eventually not be able to enforce any decision they make.  That will be a disastrous outcome:  America is one of the only countries in the world where the judiciary is independent of the political forces (justices have life time appointments, for instance) and is above politics , making their rulings based on the law, not what is popular politically at the moment.  If they lose this objectivity, the country goes down with them.  Since the ancient Greeks, civilizations have tried to improve democracy.  Maintaining a separate and independent  judiciary is essential to promote democracy and to form a society based on the rule of law.

So, I warn the political activists who try to pack the court with justices they feel are sympathetic to their short-term political agenda: you could ruin the justice system of the United States.  Instead, select justices based on their legal ability and don’t worry what their political thoughts are.

The post The Supreme Court and Obamacare–Something Different appeared first on Colin T. Nelson.

I know lots of people, who claim to be experts, are predicting all kinds of things.  In my own opinion, no one knows which way the court will decide.  Without writing pages about this topic, keep in mind a few things:

1.  The power of the Supreme Court to declare legislation unconstitutional is not given to them in the Constitution.  In the famous case of Marbury v. Madison, the Supreme Court decided on its own that it had the inherent power to decide if legislation was unconstitutional.  As a country, we often need a final decision on many critical national issues so we have, over the years, allowed the Supreme Court to exercise this power until it’s almost as if the Constitution gave them the power originally.

2.  The decisions of the court are extremely political–in the back rooms.  By that, I mean since we have an odd number of justices, the Chief Justice’s job is to forge a majority opinion in which he often has to “horse trade” various issues or points with several opposing factions until a consensus is reached.  I expect for a controversial issue like Obamacare (it’s actually a huge, complex law), there will be lots of back room compromising.

3.  In the past, conservatives have accused the court of being “activist” in the sense they don’t follow the law but, instead, create new law.  It seems to me that both political parties accuse the court of this–unless the court decides something in their favor.  Remember the presidential election between Bush and Gore and how the vote in Florida was critical?  The U.S. Supreme Court stuck its nose into a state issue and made a decision.  Since the country wanted an answer to the election, we accepted their meddling.  Conservatives, happy with the result, never accused that court of “activism”, even though they went beyond their jurisdiction to decide a state problem, not federal.  Or the other example is Roe v. Wade which drives conservatives crazy because the court “found” the right of privacy in the Constitution, even though it’s never specifically mentioned.

4.  Historically, once a person is sworn-in for life as a Supreme Court justice, they can do what they want.  Former prosecutor and Republican Chief Justice Earl Warren is the best example of a person who changed his position on criminal justice dramatically once he got on the bench.  These present justices may vote differently than people expect them to do.

What do you think?

Keep reading about my new book…

***Don’t forget to check out my new book, Fallout which will be released on June 1, 2012.***  More about it in later posts!!

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