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The President versus the Supreme Court, just like James Madison planned it

Try this little experiment. Go into a courtroom.  The Supreme Court's courtroom, ideally, but any courtroom will do.  Sit in the front row in funny clothes and, as the judge is announcing a ruling from the bench, conspicuously shake your head and mouth the words, "Not true."

You'll quickly discover that "contempt of court" describes more than an emotion.

Who's the Boss?

We ought to be grateful to Justice Samuel Alito for illustrating so neatly the gulf between the show of respect judges demand and the respect they're prepared to show.

After all, Barack Obama is merely the President of the United States. But when Samuel Alito joins up with three other wealthy, white, middle-aged Republican activists, plus Clarence Thomas, he is a good deal more powerful than that.

The immediate effect of their campaign-finance ruling from last week was to prohibit America's courts from enforcing America's democratically-enacted laws.

The longer-term effect is to set loose insurance companies to invest millions in defeating Democrats who vote in favor of the President's health care plan. The panic among Democrats faced with the onslaught of negative advertising must be very gratifying for Alito.

But it isn't enough for him. He wants not only to  beat up the President but to hear the President thank him for it.  He thinks President Obama should defer to his, Sam Alito's, greater authority.

Inside the Judicial Pyramid

Within the artificial world of America's courtrooms, describing justices as possessing greater authority than the President doesn't sound preposterous. 

Inside the judicial pyramid, legal correctness is strictly a function of authority.  If a higher court says X is correct, then the lower court has no choice but to accept X as correct. 

There's no court higher than the Supreme Court.  And so, if any five justices say something - anything at all, no matter how absurd or offensive - it's true by definition, unless and until five justices say otherwise in the future.

For lawyers and judges, working within a hierarchy even stricter than the military, there can be no difference between "the law" and "a result announced by any five members of the Supreme Court."  For those inside the pyramid, those phrases are exact synonyms.

That's what Alito was saying.  He wants the President to live by the same rules that govern life inside the justice's own courtroom.  Once five justices of the Supreme Court make a pronouncement, anybody who contradicts it is saying something "not true" by definition.

Liberal commentators take Alito's lack of civility as proof of the partisan motivation behind the court's ruling.  That might be the political meaning, but psychologically it reveals something more interesting.  If the justice truly believed the decision was no more than what the Constitution required, why would he feel so threatened by the President's words?

His behavior was offensive.  But even more, it was defensive.

Ambition Must Counteract Ambition

President Obama did the right thing.  When one of the three branches of government starts interfering in the operations of the others, the others need to fight back.  That's the only way to restore a government that, today, seems all checks and no balance.

James Madison made that point almost exactly 221 years ago, in The Federalist 48, published on February 1, 1788. "It will not be denied," he began, "that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it."

The great question was how to keep political power within its limits. "Will it be sufficient to mark with precision the boundaries of these departments in the Constitution of the government, and to trust to these parchment barriers against the encroaching spirit of power?"

Madison knew the futility of placing faith in good words alone. King George III had just demonstrated that fine words couldn't prevent him from exercising arbitrary power in America.

Rather than relying on words, Madison offered an ingeniously practical solution:

[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others. … Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.

"Ambition must be made to counteract ambition." When a politicized majority of the Supreme Court strikes a blow against a President of the other party, the President needs to strike back.  Acceptance of the court's authority is a betrayal of the Constitution - the real Constitution, the one that exists outside of the pages of the Supreme Court's opinions.

If our democracy functioned the way Madison and the original ratifiers of the Constitution intended, Congress would join the battle, too, by cutting the Supreme Court's budget by at least a third.

That would produce a reversal of the recent campaign-finance travesty faster than anything.  It would also provide Justice Alito with even more words to mouth for the cameras.


In Our Name by Joel Jacobsen (keep reading)


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