BYU-Hawaii political science Professor Dr. Troy Smith recently asked in an honors student colloquium if the U.S. Supreme Court's historical and contemporary practices of judicial review and supremacy are "destroying America."
"There's this idea that America is pulling itself apart, and at the center of this is the Judiciary," said Dr. Smith, who explained that in 1789 the U.S. Constitution created two levels of government: Federal, consisting of the Executive, Legislative and Judicial branches — "the highest of which is the Supreme Court"; and state governments, the vast majority of which mirror the national government."
"The Constitution gives certain powers to the federal: foreign affairs, war and peace, and interstate commerce; everything else is left to the states. That's the way it's written literally, but over the years it's been interpreted in many different ways to give the national government more power."
"All laws must be consistent with the Constitution," he continued, adding if there's a question about a law, the U.S. Supreme Court " determines whether the law is consistent with the Constitution."
"The interesting thing about judicial review is nowhere in the Constitution does it occur," Dr. Smith said, pointing out it first arose in 1803 with Marbury v. Madison then next with the Dred Scott v. Sanford decision on slavery just before the U.S. Civil War. In the early 20th century the Court became more active, "particularly with state laws"; and by the 1950s when the "individual rights revolution" began, "they came up with a new idea: Instead of judicial review, they call it judicial supremacy," Dr. Smith said.
"Under judicial supremacy, the Supreme Court is the final interpreter of the Constitution. Judicial review and supremacy are the same today. If you disagree with the Supreme Court, what is your alternative?" he asked, pointing out the Court justices are appointed, not elected like legislators: "They only way Congress or the president can overcome judicial supremacy is to write a new law." But where does the Constitutional system of checks and balances come in?
"The Court has started to get more and more involved in political issues," he continued, citing the example of abortion, two cases of which are on the court's current docket. Dr. Smith explained that in Europe this issue was bounced back to the people, "through the process of legislation and election. In many places in Europe, it's very hard to get an abortion. In America, you have full access to abortion...and these huge rallies for and against abortion, in a way that political debate is foreshortened. There are these constantly contentious debates, and the political parties are, in a way, defined by [their stands on] abortion."
He also said when the Supreme Court gets "involved in these difficult issues, it makes it easy for the president and the Congress to punt them: If we don't do anything, the Court will take it up." For example, he continued, Congress recently passed a campaign reform act which has the potential to violate the free speech amendment.
"As judicial supremacy has become more important, and the Court has inserted itself more and more often..., it has in many ways displaced democracy...and shielded the president and the Congress from being responsible and accountable," Dr. Smith said.
Asked who is the final arbiter if judicial supremacy were thrown out, he replied, "If we follow the Constitution, there are protections for the basic fundamental rights. The problem is where the Supreme Court makes assertions based on very weak interpretations..., where they read into the Constitution things that are not there. What's wrong with leaving it up to the political process? Isn't that what the Constitution is all about?"
Dr. Smith also focused on the division of federal and state powers, "which started to break down in the twentieth century. My argument to reinvigorate democracy in America is to give more power back to the states. When all of our power is focused on the nation, [each person is] only one of 300 million people."
He was asked, how would you push more power to the states? "I would say those issues where the people have direct contact should be handled by the state. For example, you and I don't really have an idea of what's going on in Iraq, but we do have an idea of what's going on in local education."
"Let's make some of these issues political," he continued, again using the example that abortion, which clearly has regions "where it goes one way or another. One of the things it would do is end the abortion debate, to a certain extent. Of course, you have to be careful of Balkanization, where the issues pull the country apart."
"I think the political exchange...would be beneficial. Remember, we're not talking about the political process throwing out fundamental rights. The question is new issues," he said, noting for example if the state of California has success with stem cell research, "it's going to be very hard for the federal government to resist that."
"I'm not for abolishing judicial review," Dr. Smith said. "I think the Court has a role to play. The problem is when they go beyond the Constitution and claim the supremacy. The Judiciary isn't the one declaring to go to war. The Judiciary isn't the one appropriating finances."