What if the Supreme Court became an arbitrator trying to please both sides rather than “letting the cards fall where they may,” ruling alone on constitutionality as designed? In the end neither side is really happy and the Court’s function is blurred or discredited. What if preserving its own image became more important to justices than defending the Constitution? Or worse, what if the Court forced a round peg into a square hole, so to speak, to force a decision not intended, or argued for by either side therefore creating new law—a function of Congress alone? What if all of the above were in one decision such as with the recent Supreme Court decision on National Healthcare? How can the states or people keep the Supreme Court in line with the U. S. Constitution? The answer is in the Constitution as understood by the Founders.
Our constitution first divided power between the states and the federal government with the powers given to the federal government listed, defined and limited and those of the states left undefined and not listed, as per Amendment 10. This is known as federalism and is sometimes thought of as a marriage—shared and equal—neither the state nor federal government the master nor slave of the other.
The portion of power left to the federal government is then divided between the legislative, executive, and judicial branches. The down side of federalism (our marriage) is that the umpire is one of the three branches of government at the federal level and as such is likely to rule in favor of a strengthened federal government were it to arbitrate between the states and the federal government. It is equivalent to two adversarial teams playing basketball and the referee is a member of the federal team. The balancing component to this, potentially lopsided division of power, is the doctrine of nullification.Details