It is no secret that our country has become more and more politically divided. We hear about the strong opinions held by one wing of the political spectrum all the time – almost daily.
Meanwhile, while most of us are distracted by bad news all over the country and the world. It seems to be up to a small segment of the population who specialize in politics to run the country. Americans know less and less about how our government is run.
One aspect of American government that was spoken about quite a bit in the campaign season of 2016 was the Supreme Court and its nominees.
Many conservative voters wanted President Trump in office because of his promise to nominate judges with more conservative views.
For instance, pro-life voters have as their aim and overturning of one of the most infamous of Supreme Court decisions: Roe v. Wade, which legalized abortion in this country.
What the average person may not know is that the Supreme Court has power to strike down a law for being unconstitutional, or otherwise amend a law it deemed unconstitutional. This concept is called judicial review. It was not written into the constitution.
In addition, it is hotly contested by those who hold the judicial philosophy of textualism. Including the most recent appointee, Neil Gorsuch:
“Judges should be in the business of declaring what the law is using the traditional tools of interpretation, rather than pronouncing the law as they might wish it to be in light of their own political views.”
The History of Judicial Review
What you also may not know is that this concept – judicial review – was established by the court not in recent years but in 1803 in a case called Marbury v. Madison.
It’s a crazy set of circumstances. One that one writer calls “a stinkpot of hardball politics, partisanship, questionable logic, and conflicts of interest.”
If you want to read the whole story, you may be surprised that what you thought was a well-established fact. The supremacy of our Supreme Court, actually has its roots in political power plays.
No wonder we find ourselves fighting political battles over Supreme Court nominees today.
Basically, what happened was that then Chief Justice Marshall invented the power of judicial review by striking down a law. That was it.
The particular law it struck down is interesting because of everyone involved. However, what matters is that Marshall set a precedent for future Supreme Court decisions. He basically gave the court a power it hadn’t had before.
Since then, the Supreme Court has used this power to play more and more of a policy-making role in our government.
According to Cornell Law School,
Judicial review allows the Supreme Court to take an active role in ensuring that the other branches of government abide by the constitution.
Remember, the judges sitting on the Supreme Court bench are not elected officials like your state representatives, senators, or even the president. They are nominated – for a life term.
What do you think? How has judicial review changed the way laws are enforced in this country? How could this power give the Supreme Court a bigger share of governmental power than it was meant to have?