Al Southwick: Politics, democracy and the Supreme Court – Opinion – te…


The Supreme Court of the United States is again right in the middle of a political briar patch. Some deplore it. Some think the high court should somehow go on its serene way free of political considerations. But that notion is little more than a durable fantasy.

As Mr. Dooley, the acerbic political commentator created by American journalist Finley Peter Dunne, put it a century ago, “The Supreme Court reads the illiction returns.” And so does the rest of the political establishment.

The high court’s political impact was felt as early as 1801, when President John Adams, in the last week of his presidency, appointed John Marshall chief justice. Marshall like Adams, was a Federalist strongly opposed to the political philosophy of the new president, Thomas Jefferson. Marshall served for the next 33 years, a thorn in the side of Jefferson and his followers. He is often ranked as the most influential of all the chief justices.

The Supreme Court for years did not get much involved in legislation. Although Chief Justice Marshall ruled (Marbury vs. Madison) that the court had final jurisdiction over the constitutionality of legislation, the court never once ruled on any law passed by Congress until 1857. That was the notorious Dred Scott case in which the court ruled that a slave was just a piece of property and had no constitutional rights whatever and that the 1820 law forbidding slavery north of the Mason-Dixon line was an unconstitutional encroachment on property rights.

The Dred Scott decision hastened the outbreak of the Civil War and damaged the reputation of the court. It probably made things easier for President Abraham Lincoln when he took dictatorial measures in suspending habeas corpus (requiring someone be brought before a judge, often to secure their release), and when he threw a whole batch of secessionist Maryland state legislators in jail. Chief Justice Roger Taney was infuriated by the president’s actions but could do nothing because Lincoln and his generals ignored him.

When the administration enacted an income tax in 1862 to help finance the war, Taney considered it unconstitutional. When the court ruled that the habeas corpus suspension in the Merryman case was unconstitutional because only Congress had this power, Mr. Lincoln simply ignored it. Not until after the Civil War did the court recover the standing it had had before the Dred Scott case.

The court has been on the hot seat several times since. When it ruled that the 1894 law reestablishing an income tax was unconstitutional it touched off a big controversy,  finally resolved by a constitutional amendment (ratified in 1913).

In more recent times, the court ran afoul of President Franklin D. Roosevelt and his New Deal. After the court ruled that several key elements of the New Deal laws were unconstitutional, the president came up with his “court packing” scheme. Under the pretext that the court was overburdened, he proposed adding a new justice for every sitting justice over 70. The recommendation alarmed the country and Congress and it went down in the most crushing rebuff that FDR ever experienced.

Now here we are in another political thicket with the Supreme Court deeply involved. This whole controversy is a reminder that the United States is not a democracy, although our governmental system as a republic with elected representatives making decisions has some democratic elements. The tendency over the years has been to make the system more democratic. Presidential primaries and national conventions have changed the way that the Electoral College works. The Founders did not envisage a time when the people voted directly for president and vice president.

They even decided that the people would not vote directly for their senators. Until 1917, senators were selected by state legislatures. The 17th Amendment requires U. S. senators be elected by popular vote instead of by state legislatures.

We have come a long way since 1787, when the Constitution was drafted. The original Constitution basically applied to white males who owned property. It specified that a black slave, when tallied for population statistics, was to be counted as worth three-fifths of a white man. It did not guarantee the vote to women, to poor people, or to former slaves.

Some of those deficiencies have been corrected by amendments over the years. The 15th Amendment gave the vote to males, including former slaves, regardless of color. The 19th Amendment gave the vote to women. The 24th Amendment eliminated the poll tax, which for years had been used in the South to keep blacks from voting. The 26th Amendment gave the vote to anyone 18 and older.

The Constitution we live under now is a far cry from the original document, although it still is some way from being “democratic.” Many other constitutions written for other countries are more democratic than ours.

But, as George Billias, the Clark University professor emeritus, pointed out in his magisterial study, American Constitutionalism Around the World, our Constitution has become the standard of the world. That document, patched together in 1787 after some major political compromises, is still the bedrock of the American system of government, more durable than any other on the globe. 

The current controversy about confirming a new justice is not the first time that the high court has been embroiled in politics. And it won’t be the last.

Albert B. Southwick’s columns appear regularly in the Telegram & Gazette.


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