Tuesday, June 7, 2016

Judicial Review

The pre-eminent job of the Supreme Court is to decide whether a particular law is Constitutional.  This is what we have been taught for well over 50 years so it must be true, no?

No!  That is just so much bull-shit!  The Supreme Court is the court of last resort; it is the last place that an unlucky defendant can go for JUSTICE!

Deciding what law may or may not be Constitutional is called “judicial review.”  In Constitutional circles, the very idea that judicial review is a Constitutionally enumerated power of the Court is controversial.  John Marshall, in Marbury v Madison, 1803, asserted the Court’s power of judicial review, and he did so in a way that compelled his enemies to accept his decision.  So, we have over 200 years of the Court’s right to the power of judicial review.  Yet there are still scholars who claim that judicial review is not Constitutionally sanctioned as a power of the Court.

The Court’s real job is JUSTICE!  In a free society, courts exist to decide what is just.  The Supreme Court’s special privilege is to be “the court of last resort,” for justice.  How often over the years have men on death row submitted briefs to the Supreme Court, as their last chance to have their guilty verdict overturned or their death sentence commuted to life in prison?  There is no judicial review here, there is just a demand that justice be done.

In 2009, Justice Scalia asserted that as long as a defendant received “due process,” whether he in fact committed the deed he was convicted of was irrelevant.  If a man was treated fairly by the system, his REAL guilt or innocence was irrelevant.   This is the thinking of a man whose mind was twisted into thinking that judicial review and oversight that due process had been rendered were the sole powers of the Court – and that justice was beside the point.  Electrocuting a man for aggravated rape and murder when a DNA test might prove the man innocent of the crime is OK according to Justice Scalia, as he was treated fairly by the standards of the time (before DNA testing was done).  Do YOU believe this?  Would you vote to execute a man who was found guilty of the crime but modern techniques might find him clearly innocent?  I hope not, I pray not.

In 1963, in Brown v Board of Education, all nine justices of the Warren Supreme Court decided that separate but equal was illegal, and that segregated schools nationwide had to be integrated.  There was nothing in the Constitution or the Bill of Rights that supported that judgment.  Indeed, that judgment defied precedent, it defied stare decisis, as Plessy v Ferguson, 1896, had declared that separate but equal WAS legal.  Did the nine justices of the Warren Court “legislate from the bench”?  Did they overstep their proper Constitutional powers?  Maybe.  But they rendered JUSTICE!  The Constitution be damned!

No, judicial review is not the primary focus of the Supreme Court, the Constitutionality of a law or the proper adherence of the lower courts is not the primary purpose of the Supreme Court; JUSTICE, only justice is the primary purpose of the Supreme Court.  And it is common sense, not the Constitution, that recognizes justice when we see it.

If not justice, we are no better than machines!