IS IT TIME TO REJECT CHIEF JUSTICE MARSHALL IN MARBURY V. MADISON?
How to hold Trump accountable without a constitutional amendment
To avoid getting bogged down in the practicality of what I’m about to propose, let's assume Kamala Harris is elected in November with a comfortable majority in both houses of Congress. What’s to prevent Congress from limiting SCOTUS’ power of judicial review to laws expressly itemized in the Constitution (like no bills of attainder and ex-post-facto laws), and Amendments (like freedom of religion, speech, the press, assembly, and petition), while leaving issues not specifically mentioned in the Constitution (like abortion and money in politics, regulation of technology, and presidential immunity) to Congress to legislate and the Executive to implement without SCOTUS interference?
SCOTUS went beyond strict constitutional limits in Marbury v. Madison (a minor case dealing with a political appointee’s grievance) when Chief Justice Marshall seized the occasion to secure the Supreme Court’s primary role in the constitutional interpretation of ALL laws passed by Congress, a role not granted by the Constitution, at least not as to laws beyond those explicitly mentioned therein. (See end note.) The Marshall Court’s arrogation of power was shocking at the time and not exercised again for half a century thereafter. President Jefferson strongly objected, but Congress accepted it in 1803 as have Congresses and Executives thereafter (except for Lincoln and Jackson.)
Given today’s rogue SCOTUS, shouldn’t that acceptance be questioned and reversed? Article III of the Constitution and the “Necessary and Proper Clause” grant Congress significant authority to regulate the Court’s jurisdiction, size, and procedures. Reversing Chief Justice Marshall’s arrogation of powers of judicial review not granted by the Constitution would go a long way to preventing SCOTUS from legislating from the bench and flouting ethics rules while preserving the separation of powers and checks and balances where appropriate.
If Congress asserted its constitutional supremacy in legislating behavior not explicitly mandated or forbidden by the Constitution, such as presidential immunity, SCOTUS’s decision in Trump v. United States could be nullified and a law could be passed holding presidents accountable for criminal acts committed while in office without resorting to the arduous constitutional amendment process. It seems illogical to require a constitutional amendment to settle an issue not raised by the Constitution. Even originalists and textualists on the Court would have to agree.
End Note: Over the years, SCOTUS’s unrestricted power of review has simply become accepted with no formal complaint from Congress and compliance by the Executive (Except for Lincoln and Jackson both of whom ignored SCOTUS decisions). The result has been an imbalance in the “Balance of Power,” tacitly granting 6 of 9 unelected, very biased, life-tenured judges veto power over the actions of the other two branches of government comprising hundreds of elected representatives and millions of trained government employees serving We the People. The Court exercises not only veto power over the legislature and the executive but also power to compel – in a word, to legislate, unchallenged by either branch of government.
In this, the Court is ostensibly guided by rules laid down by very wise, if flawed men, more than two centuries ago during very different times, but as interpreted today, out of tune with the desires of the overwhelming majority of today’s electorate on abortion, gun possession, money in politics, regulation of technology, etc., and, most recently, criminal accountability for a rogue president.
In practice, the 6 Republican justices on the Court have gone rogue, guided by the political agendas of the executive who appointed and legislators who confirmed them and with whom the justices like to socialize. These agendas, in turn, are set by and for the benefit of very wealthy donors who put them in office (and, not incidentally, are known to bribe members of the Court with expensive favors). More often than not, these agendas conflict with the economic interests of the electorate. Republican legislators keep their constituents pacified by misdirection, delivering victory in the culture wars, while wealthy donors pick their pockets.
It's strange that they get away with it, given their lack of enforcement powers, low public regard, and demonstrated propensity to compel behavior distasteful to the majority of the People.