U.S. Supreme Court v. Democracy
by John M Repp
A review of Thom Hartmann’s book The Hidden History of the Supreme Court and the Betrayal of America (Oakland: Berrett-Koehler, 2019)
This short book in the Hidden History series was published in October 2019. The author, Thom Hartmann, is a progressive talk radio host who can be heard weekdays in the Seattle area on KBCS, 91.3 FM from 9 am to noon. Sadly, the political talk show radio format is dominated by right-wing hosts nine to one over progressive hosts, according to a page on the Center for American Progress website from 2007. https://www.americanprogress.org/issues/general/reports/2007/06/20/3087/the-structural-imbalance-of-political-talk-radio/. I suspect the overwhelming dominance of conservative over progressive talk shows remains today.
In the recent (late 2019) news coverage on the impeachment of Trump, many older people are learning things we may have heard in high school civics class but have forgotten. An example is that the three branches of our Federal government, the executive, the legislative and the judicial are coequal. Hartmann makes the case that the Supreme Court has put itself above the other two branches by taking the power of judicial review. Judicial review is when the Supreme Court takes a case and decides that a law made by Congress is “unconstitutional.” Hartmann quotes none other than Thomas Jefferson in a letter to Abigail Adams, that if “judges [have] have the right to decide what laws are constitutional….[that] would make the judiciary a despotic branch.” (p.26)
There is nothing in the Constitution that gives the Supreme Court the power of judicial review. The Founders wanted the Supreme Court to be the final court of appeals, the highest court of the Federal Court system. Hamilton, Madison and John Jay, all under the pseudonym “Publius” wrote a series of essays in 1787-1788, now called the Federalist papers, to promote the ratification of the Constitution. In the Federalist paper no. 81, Hamilton said in effect that the Supreme Court could not make or strike down laws, and if it attempted to do that, the legislature could simply write a new law. (pp. 17-18) In direct contradiction to himself, in Federalist paper no. 78, Hamilton essentially endorsed the idea of judicial review, “It belongs to them (i.e. the Supreme Court) to ascertain it’s (i.e. the Constitution’s) meaning, as well as the meaning of any particular act proceeding from the legislative body.” (p.20). In this new experiment with three branches of government, the Supreme Court decided the issue. With its 1803 ruling in Marbury v. Madison the Court grabbed the power of judicial review and became the dominant branch.
Hartmann is very critical of the Supreme Court in this book. I will quote him directly: “corporate personhood and money as speech were simply invented by corporate-friendly Supreme Court rulings (in the 1819-86 era for corporate personhood, and in the 1976 -2013 era for money as speech) Their combined effect has been to hijack America’s democratic experiment, concentrating power into the boardrooms of faceless corporations and the summer homes of reclusive billionaires.” (p. 8)
Currently one of the main problems with our political system is the massive amount of corporate money in our election campaigns which corrupts our elected officials. In the dissenting opinion in the Citizens United (2010) case, John Paul Stevens wrote: “Money is property; it is not speech….” (p.49). Quoting Stevens again: “Corporations, it was feared, could concentrate the worst urges of whole groups of men. Thomas Jefferson famously fretted that corporations would subvert the Republic.” (p.49) Hartmann writes that because of these doctrines and rulings of the Supreme Court, our political system is the most corrupt of any advanced industrial country in the world.
The Republican Party seems very aware of the power of the Supreme Court in our system. Their political strategy has been to do whatever is necessary to win the Presidency so they can control the appointments to the Federal Courts and the Supreme Court. Hartmann writes that Nixon committed treason to get elected in 1968 (p.115) and Reagan committed treason in 1980 (p. 116ff). Bush and Trump committed election fraud to get elected. (p.131). This book does not mince words.
What is to be done? The last part of the book tells us what must be done to give the people in our country a chance to have a democracy. The Constitution explicitly gives the Congress the power to do what Hartmann suggests. First, he proposes an 18 year term limit for the Supreme Court. Second, he suggests we install a camera in the Supreme Court room. Third, he suggests “court-stripping” This means that when Congress passes a law that they think will be challenged by the Court, they attach the phrase that specifically prevents the Court from ruling on the constitutionality of the law. “Court-stripping” is based on Article III, Section 2 of the Constitution which says “[T]he supreme [sic] Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” (p.142). Ironically, court-stripping was investigated and written up by the current Chief Justice John Roberts, before he was on the Court, when he was searching for a way to overturn Roe v. Wade.
In conclusion, Hartmann’s book on the U.S. Supreme Court explains how democracy has been betrayed through the legal system itself. Consider this book a graduate level course in civics.
There is a bit of hope at the end of the book that the U.S. Supreme Court can salvage its reputation among knowledgeable progressives and do the right thing. As I write in December 2019, there is a case the current Court will hear in June; Juliana v. United States. A group of 21 young people (one of whom lives in West Seattle) with the help of Our Children’s Trust (https://www.ourchildrenstrust.org/juliana-v-us) has sued the Federal Government, claiming it is the Government’s responsibility to protect the commons i.e. all humans and the environment, from climate change and that currently, the Federal Government is facilitating the harm. The ruling is expected to come down at the end of the current term, which will be the late summer of 2020. If the young people win this case, the subsidies the fossil fuel industry receives will be declared illegal and the Federal Government will be committed to use incentives and programs to promote clean and renewable power (pp. 101-102, 104-108).