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A Proposal on Reforming the Supreme Court

A Proposal on Reforming the Supreme Court

July 28th, 2015 // 8:12 am @

by Oliver DeMille

I don’t mean it. I’m going to propose it, but I don’t really want it. Or think it’s a good idea. This proposal is meant to be ironic. But it still needs to be said, because there is far too much truth to it.

Supreme Parliament of the United States

DogmasIn the wake of recent Supreme Court decisions, it’s clear that the Court doesn’t just try cases. It now writes law. It isn’t only a Supreme Court, it’s the de facto Supreme Parliament of the United States as well.

The Court uses some decisions to simply rewrite the laws of the nation, including the laws of the states. It’s been doing that for some time,[i] of course, but now it’s taking this approach to a whole new level. It has decided that the 9th and 10th Amendments are outdated, and it just ignores them.

For example, the Court labels Obamacare a “tax”, even though the Congress and President who proposed and passed it never called it that, and even though it skirts many state laws. The Court just makes up its own way.

Forget the actual case at hand; the Court is convinced that it has the power to create whatever it chooses out of thin air. Whatever the Court says, goes. Call it a “tax”. And call marriage a Constitutional right, even though the word “marriage” and the concept of marriage are never even mentioned in the Constitution or any of the Founder’s commentaries on the federal Constitution.

The Framers specifically left any and all decisions about marriage to the states. The Court has amended the Constitution without even using an official amendment.[ii] Many times. Just because it wants to.[iii] I’m not saying the Court got any of these recent decisions wrong, or right. That’s not my point. In fact, my point is much more important than any of these cases. I’m saying the Court has no authority in the Constitution to make many of its decisions.[iv]

It gave itself the power to do these things.[v] It just took the power. Such power didn’t come from the people or the Constitution.[vi] Such power isn’t legitimate authority. It is, to use the precise, technical word that the Founding generation used for this exact behavior: “tyranny”.

Whether you love the current Court’s decisions, hate them, or fall somewhere in the middle, the bigger picture is beyond the cases. The Court is now boldly and fully engaged in Judicial Tyranny.[vii]

The new rules of the Court: Just do whatever you want. You’re the Court, after all. Oh, and that pesky reality that the Constitution doesn’t give the Court the authority do more than half of what it now does? No problem. Since you’re the Court, just announce that the Constitution does, in fact, give you such authority. In fact, decree that the Court has the Constitutional authority to do whatever you decide to do.

Jefferson warned that this very thing was the biggest danger to the Constitution and to American freedoms. And his prediction has come true. The Legislative Court has become one of the greatest dangers to our freedoms. Five lawyers literally have the power to do whatever they want.

The Proposed Change!

So here’s the proposal. I heard it on a radio show, and it made me laugh. Then it made think. Then it made me mad. Check this out:

Since the Supreme Court now makes up any law it wants just by writing it up in a majority opinion, without bothering about what the House or Senate does, let’s balance the budget by just disbanding Congress. Why pay Representatives and Senators and their staff when the Court is just going to write up laws on its own anyway?

That’s the proposal. Let’s just get rid of Congress and let the Court keep doing its thing.

Again, I don’t really mean it. But at this rate, the Court is on pace to do this anyway. And in the meantime, it’s already behaving as the Supreme Court and the Supreme Parliament all in one.

One More Thing

By the way, the real solution is for Congress to pass legislation ending the use of precedent in the courts and limiting every Supreme Court decision to the scope of that one case. This will send many in the current generation of lawyers into a tizzy, but it’s the right thing to do. Assuming that we want to remain free. Such a change will immediately return the Court to its Article III powers.

Or, barring this solution, if we’re going to keep with the bad tradition of common law precedent,[viii] amend the Constitution so that 2/3 of the state Supreme Courts can overturn any decision of the Supreme Court. (More on Common Law in footnote “viii”.)

If we don’t do one of these, we literally might as well adopt the proposal above—because the Court is now operating as both the Judicial Branch and a Higher Legislative Branch.



[i] See, for example: Martin v. Hunter Lessee; Cohen v. Commonwealth of Virginia; McCullough v. Maryland; Gibbons v. Ogden; Missouri v. Holland; New York ex rel. Cohn v. Graves; U.S. v. Butler; U.S. v. Curtiss-Wright Export Corp.; Wood v. Cloyd W. Miller; among others. See also: Bruno Leoni, Freedom and the Law, 3-25, 133-171.

[ii] Compare Article VI of the United States Constitution to Article III.

[iii] Some scholars and jurists will balk at this, arguing instead that the court “finds” or “discovers” the Constitutional meaning in the law. But while the Court may employ technical and/or logical language to support its decisions, it still utilizes its will. It may claim that its decisions are “findings,” and at times they are, but they are still always decisions. (If they were truly “findings,” matters of law without personal choice, all cases would be decided by 9-0 votes. Will is part of each decision.) Moreover, despite what is taught in some law school courses, the Framers clearly understood votes of the Justices to be acts of will, not mechanized requirements demanded by the laws.

[iv] Read Article III word for word. No such powers are granted.

[v] Review the cases listed in footnote “i” above. See also: John E. Nowak, Ronald D. Rotunda (Thompson-West), Constitutional Law, Seventh Edition, pp. 1-16, 138-156, 397-398.

[vi] Article III.

[vii] See how Raoul Berger warned of this a generation ago: Raoul Berger, Government by Judiciary.

[viii] Many in the legal profession argue that the Framers preferred Common Law to the other alternatives. Certainly there are a number of quotes from prominent founding leaders that on face value seem to support this view. In reality, most of the Framers preferred Common Law to Romano-Germanic Codifications. This was the major legal debate of the era, in Europe at least. Thus the Justinian model was soon to be followed by the Napoleonic Code. So when the Framers sided with Common Law over the Romano-Germanic model it was taken as a blanket endorsement of the Common Law. However, some of the top Founding Fathers, including both Jefferson and Madison, preferred a third model, the Anglo-Saxon code and system, over Common Law. For excellent background on these competing systems, see: Rene David and John E. C. Brierley, Major Legal Systems in the World Today; John William Burgess, The Reconciliation of Government with Liberty; Theodore F.T. Plucknett, A Concise History of the Common Law. In short, common law builds on precedent; the Constitution the Framers wrote didn’t require the use of precedent by the Judiciary. In the Framer’s model, the Court was “supreme” in deciding any one case. Period. This keeps the Court separated in the judicial realm. It is an independent judiciary, unlike in Britain, because it has sole authority to provide the final determination in any one case. But separation of powers gives it no authority to use dicta or precedent to influence later cases. Any allowance of precedent creates the need to explain a decision, and moves into the realm of legislation. Common Law was not the intent of the Framers. Once the Constitution was ratified, however, the attorneys of the era, trained in the Common Law, simply kept practicing their system without change. The Anglo Saxon code and model was quickly lost, to the detriment of American freedom. Most attorneys are unaware of this. Even a lower percentage of non-attorney citizens understand this. We lose our freedoms in many cases simply because we don’t know better.

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9 Comments → “A Proposal on Reforming the Supreme Court”

  1. Mercer

    8 years ago

    I understand that the court should not leave a precedent, but is it the jurisdiction of the supreme court to strike down unconstitutional laws or do people have to all go to court individually to be exempt from an unconstitutional law?

  2. Robby Palmer

    8 years ago

    Hello Oliver.
    Well written. I’m pretty simple minded when it comes to issues of these sorts, and you wrote that in a way that made me want to keep reading, and I even think I understand.
    Tyranny, exactly my thoughts. How do we change it? How do we wake up America? The majority just doesn’t even know or understand!

  3. Oliver DeMille

    8 years ago

    Mercer, you’ve hit on a very deep issue. To maintain its role as a judicial (not legislative), the Court may strike down a law as unconstitutional applied to a specific case before it – the same way a jury could nullify a law in a case before it. Such a ruling by the Court would not be precedent. But it would signal to the Congress that they need to fix the law. If Congress does nothing about this, each individual case on the same topic would most likely be struck down. The Congress would eventually fix it; or it could just let it stand. This was a balance, one of the checks and balances of the Constitution. If the law is to change, it requires legislative action. If there is no legislative action, the law stands – but isn’t upheld by the court. This naturally becomes a precedent, because the executive is left to use its discretion – ignore the law, or enforce it. But that choice is an executive choice, and shouldn’t be up to the judge. This is how checks and balances maintain freedom. Judges can act judicially, presidents can only execute action, and legislators can only legislate. If all three don’t, or if any don’t, the accused walks. Freedom is much more widespread when all 3 branches can only do their 1/3 of the process, and all 3 must concur in order to convict. That’s the whole point of the system. ~Oliver

  4. Dave Nelson

    8 years ago

    Hi Oliver,
    I agree with the person who said you make these things easy to understand. One problem is we are a nation of law breakers; right on red without slowing down. Most people are not accountable to themselves or anyone else for their actions.Is the congress or supreme court accountable to us the People? NO WAY! It’s why we have so many people working for low income wages, they dont do everyday whats required to be successful. A second problem is money and comfort. Our future is stolen from us by government stealing our future money to pay for things today. third all this stress the government is creating is causing many people to do crazy things in hopes of making themselves “feel good”, which is also feeding the frenzy of craziness. You talk of Obama-care; do you know how many people dont have health insurance because either they cant afford it or they have a high deductible so it never pays for anything. Imagine the government saying you have to buy something that is totally useless and uneconomical, would that add stress to a life? you bet it does. I wonder when the implosion will happen?

  5. Hailrock

    8 years ago

    What precedent or precedents were used in the latest decision by the court on “gay marriage?” It seems, in a way, they did not use any precedent from the past but rather just came up a new idea, making a leap of sorts, and did what they felt was morally right–acting as it were as judge and jury.

  6. Aaron

    8 years ago

    Hailrock – Oliver didn’t refer to the “gay marriage” decision as an act of judicial precedent but of judicial tyranny. That decision created marriage (gay or otherwise) as a right protected by the constitution. The problem here is that the Constitution does not mention marriage nor is there any hint of the idea there. It isn’t the roll of the government to regulate marriage. If the government creates a right, what stops the government from coming back in ten years (or whatever period) and saying, “no, it’s not a right anymore”? All it would take is a significant change in the court demographics. Not a good idea. The problem with this whole debate is that both sides are looking at the issue wrong. the Pro Gay Marriage movement says that they have a right to be married, while the Pro Traditional Marriage groups say, “No! Marriage is between a Man and a Woman.” They are not stopping to think that maybe the government isn’t supposed to recognize marriage at all. It never was supposed to, whether married or not, all individuals should be treated equally under the law. No special benefits to married folks (gay or straight) – this inherently discriminatory to singles (thus not treated equally under the law). Using man-made law to encourage certain behavior is discriminatory by nature. Protect natural rights, that’s it. Government should do nothing else. The Courts are out of control and we need to fix it. I like the Idea of passing legislation restricting their actions, but who is going to hold them to it? The Executive branch? Only when they disagree with the decision. Congress? anybody else laughing. Only with an educated populace, understanding the proper roll of government, understanding natural rights and paying enough attention to be involved and get active will we really be able protect freedom.

  7. Hailrock

    8 years ago

    I agree that it is judicial tyranny. But, is there any evidence that certain precedents were used in this ruling and what were they?

  8. Jerome Lashbaugh

    8 years ago

    Although such merit selection panels may well have salutary consequences at the state level, and although there is some evidence that merit selection might for lower court judges produce a judiciary whose politics are closer to those of the median lawyer, and so too for the lower federal courts, it is difficult to see how such an approach would even be relevant to Chemerinsky’s self-described case against the Supreme Court.

  9. Oliver DeMille

    8 years ago

    Right on!

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