by Donna Waller
The U.S. Supreme Court is a fascinating institution. I have actually been focusing on it since 1964 when I decided to become a Government major with a concentration in Constitutional Law. In my lifetime I have watched it do away with segregation, demand that state legislatures apportion themselves fairly, affirm that the free exercise clause must take precedence over state laws and local ordinances, and require the enforcement of due process rights in the face of arbitrary judicial and police power. I have watched the Court affirm a woman’s right to choose, and now, marriage equality. I have seen some negative moments, too, the worst of which in my opinion is the Court’s recent decision in the Citizens United case.
All of these decisions have stirred controversy. I am old enough to remember “Impeach Earl Warren” billboards all across the South; however, I must admit the way some conservatives have reacted to the recent marriage equality decision has amazed me. No, Governor Jindal, we cannot “abolish” the Supreme Court. It owes its existence to the Framers, or as I like to think of them, James Madison and his buddies. Conservatives are supposed to revere them and their work. The men who wrote the Constitution really hoped to create a governing document for this country that would serve it forever and were remarkably thoughtful in its construction. Their belief was that popular government required a delicate balance between the wishes of the majority, which they believed could be as tyrannous as any king, and the liberties and rights of minorities. The Court was absolutely meant to be the guarantor of civil liberties, and after the passage of the Fourteenth Amendment, it became the guarantor of civil rights, as well. That is why the justices are appointed for life or “good behavior,” to be removed from the popular will. You might be able to impeach one justice, but get rid of the Court? I don’t think so. How could so many people who call themselves conservatives and who wish to lead this country have so much disdain for the fundamentals of the system?
People who dislike Supreme Court decisions really only have two options. They can wait until the Court changes composition and reverses the decision. Because the Court is a conservative institution itself, being bound by precedent, this happens rarely, and when it does, it takes a long time. In the case of the reversal of Plessy vs. Ferguson by Brown vs. The Board of Education, the process took nearly seventy years.
The other way to overturn an unpopular decision is by the passage of a Constitutional amendment. This is a cumbersome and uncertain process. Two thirds of Congress must propose it, and three quarters of the state legislatures must agree to ratify it. The Move to Amend folks who hope to overturn the Citizens United must understand that they will have to be in it for a long haul. In the case of marriage equality, this strategy was sure to fail in the face of the number of states that had embraced the principle before the decision. Yes, Governor Walker, you are deluding your supporters with empty rhetoric; furthermore, for presidential candidates to even talk about Constitutional amendments is crassly manipulative. Presidents play no role in the amending process whatsoever. Are the candidates hoping that voters are ignorant of this fact? You bet!
If you knew all this, you probably did well in your American National Government class. If you didn’t and you know some people you think might not either, please explain these facts to them. This is reality, not rhetoric.