People who usually revere the Founding Fathers and the U.S. Constitution today are voicing doubts about whether the founders got it right with respect to the Supreme Court.
The critics’ misgivings come in the wake of two decisions they disliked — the court’s upholding of the federal health care law on Thursday and, more divisively, Friday’s ruling that same-sex marriage is legal in all 50 states.
In an extreme example of second-guessing the founders, Louisiana Gov. Bobby Jindal, a presidential candidate, said Friday, “… let’s just get rid of the court.”
More moderate critics have suggested that Supreme Court justices should be subject to election.
All of them display a shortsighted view of history and a lack of respect for the founders’ concept of an independent Supreme Court.
The founders lived in a pre-democracy world where kings or dictators could get rid of judges on a whim if they disagreed with their opinions. In response, they wrote a Constitution that says, “the judges, both of the supreme and inferior courts, shall hold their offices during good behavior …”
One of the Constitution’s signers, Alexander Hamilton, wrote about his support for the “good behavior” rule: “In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body.”
Throughout history, the Supreme Court has affirmed minority citizens’ rights that likely would not have been supported by legislatures or a majority of voters in certain states.
The textbook example of an issue where the Supreme Court went against popular opinion — at least in the states affected — is Brown vs. Board of Education. In 1954, the court declared segregated schools unconstitutional. Southern states resisted that decision for a decade, and two presidents — one Republican, one Democratic — had to send troops to enforce the ruling.
Today, few would argue that the rights of African-Americans should have been up to the elected leaders in states such as Arkansas, Alabama and Mississippi, who stubbornly opposed integration.
Recent decisions by the court irritated political conservatives. But other recent rulings have favored conservatives to the consternation of liberals — including a 2008 affirmation of gun rights, a 2010 case allowing corporations to spend freely on political campaigns, and the 2000 decision that enabled George W. Bush to become president.
In the 1930s, the Supreme Court frustrated President Franklin D. Roosevelt’s attempts to institute his New Deal — so much that he proposed an increase in the number of justices that would have allowed him to get his way.
A huge majority of Americans at the time supported Roosevelt and his economic recovery programs — the very programs the Supreme Court was blocking. But Americans rose up in fury against Roosevelt’s plan to “pack” the court with favorable justices.
A historian wrote that the failure of FDR’s scheme meant “… the institutional integrity of the United States Supreme Court had been preserved — its size had not been manipulated for political or ideological ends.”
Preserving the court’s integrity remains good advice today, during a controversy that pales in comparison to many past uproars about the high court.
Sometimes in its history, the court has become unpopular for running ahead of public opinion. At other times, such as in its reluctance a century ago to ban child labor, it has incurred wrath for dragging its feet.
Despite the outcry, today’s court seems to be right in step with the nation on gay marriage. A wide sample of opinion polls show support for gay marriage at around 57 percent.
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