For me it’s always interesting to learn more about America. I was reading about the judicial system and learned a bit about how things were meant to function. We are taught about the 3 equal branches of government but in reality the judicial system is set up to have less power than the legislative and executive branches. They all have checks and balances, but the power of the judicial branch is limited. This is at least partly due to the fact that the people do not elect them. They are appointed. They were not meant to have lifetime appointments or little accountability like they do today. They were able to keep their appointment based on good behavior. As stated in the constitution Article III. sec 1
“The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, “
This means they can be removed for bad behavior. Some examples of reasons judges were removed in the early days were drunkenness at home or swearing in the courtroom. Seems strange in our day but also shows the intention was not lifetime. The judges need to be accountable and in good character.
Judicial is the weakest branch, controlled by the other two. They give opinions but cannot determine laws. It seems, functionally, today we treat the supreme court as a law maker and the final say in things. This was not the intended function nor it is best for America. The purpose of the supreme court is to give opinions on the constitutionality of the issue in question. Their rulings do not and should not determine laws. Laws can be made by congress based on a ruling but it is not a forgone conclusion of a ruling. Also, politics should not be in the equation at all. It’s not public opinion or political leanings that should determine rulings but black and white right or wrong in relation to the question, is it constitutional or not. A great book to read is “Original Intent” by David Barton. It does a great job of showing precedent and past rulings of the court which is also a picture of the intent of how the framers designed the founding documents.
In Lincoln’s day the Supreme Court basically said black people were property. Lincoln ignored that ruling and went forward to free the slaves with the 13th Ammendement. The Court’s opinion had no teeth.
The first time the Supreme Court used judicial review against congress was in 1857 claiming that blacks had no rights and were considered property. In 1820 Congress passed a law that eliminated slavery. This was part of the Missouri Compromise. Congress rightly ignored the supreme court and kept to the law passed in 1820.
In 1954 Brown v Board of Education stepped in and ended segregation. In reality it was just reversing its decision in 1882 supporting segregation. None of that was necessary because in 1875 Congress passed a law that banned segregation everywhere. Had this law been followed and enforced there would have been no need for Brown v Board of Education and they should have rightly ignored the court in 1882. It legally had no bearing.
We have a modern version of this same scenario in Roe v. Wade. The original ruling in 1973 was unconstitutional as there was nothing in the constitution giving the right to abortion. The recent 2022 ruling simply reversed that ruling because it was wrong to start. Laws are made in congress not the courts.
Somehow people have gotten the idea that the court needs to protect the minority. We accept rulings as law and force the majority to accept a minority rule. The majority actually protects the minority. The majority fought a war to free a minority-slaves. The majority voted to give voting rights to blacks. The majority voted to give voting rights to women. When the system works smaller groups are not forgotten. On the flip side some will force the minority opinions and views on everyone. When that happens society is upside down and the majority has to give up any rights and the minority rules. If you don’t get your way in the vote you just go find a judge on your side to make some ruling on that issue and force it. Seems illogical if you ask me.
I don’t know if we can get back functioning the way the founders intended but if we could it would be better for all Americans.
