Nine he gave to Mortal Men, proud and great, and so ensnared them. Long ago they fell under the dominion of the One, and they became Ringwraiths, shadows under his great Shadow, his most terrible servants. (LR, I, 2)
The Supreme Court has been an itch that I haven’t been able to scratch since, well, since I was in High School and got into what became quite a heated argument with a junior college president over the merits of judicial review and life terms. Granted, at that age my opinions were more pugnacious, my style pugilistic and my intentions more about antagonizing my betters than any real intellectual pursuit. Yet, that annoyance and suspicion of the Supreme Court and Judicial Review has stuck with me ever since. And if you look at life through my kaleidoscopic vision, you come up with a fairly disturbing grasp of the system.
What we witnessed with the Supreme Court in a matter of two days was historic and a bit disturbing. We saw a group of nine untouchables, some of the same asshats who declared that a corporate, totalitarian machine is a person strike down the Defense of Marriage Act on the grounds of equal protection and send the decisions back to the states where it belongs. Yet the day prior strike down section 4 of the Voting Rights Act, effectively neutering the entire act.
What we should be realizing, actually should have realized long ago, is that the Constitution of the United States is a wax nose for the political opinions and allegiances of the Justices of the Court. Going all the way back to the Marshall court, all major constitutional decisions have been made by activist courts with tangible and unconcealed agendas. This is something that I think weighed heavily upon the conscience of Thomas Jefferson, who happened to also be a distant cousin of Justice Marshal, when he wrote to Spencer Roane in 1819,
In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that ‘the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.’ If this opinion be sound, then indeed is our Constitution a complete felo de se[act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow… The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.
Judicial review, which has become the lynchpin of our civil rights driven society, spits in the face of whatever system of checks and balances that you may have been taught functioned in practical American government in some government and economics class or whatever in your youth. The simple truth is that Marbury vs Madison in 1803 lit the constitution to use as a taper to light candles in elegy of the revolution. And this is something that Republicans need to digest, the Supreme Court determines what the Constitution says and means and informs the public and creates law by precedent through the mediation of public legal disputes. Thus it is not the Constitution guiding the rulings and opinions of the Supreme Court, but rather, for good or ill, it is the consciences or lack thereof of the Justices which fashion and proclaim the voice of the Constitution. The Constitution of the United States of America has become nothing more than the sacrificial animal the priests slaughter to augur the future.