How many times have I heard that if something is wrong with a law of Congress the Supreme Court will stop it and that the Court is totally independent of Congress? Both views are decidedly incorrect. Supreme Court members may, in fact, agree that something is unconstitutional but they, by themselves, or as a body, are helpless in blocking it unless it is first challenged by someone else.

The Supreme Court may not interfere with any law unless someone is hurt or damaged by it, and is able and willing to challenge the law, over a long period of time, with the likelihood of a costly but doubtful conclusion. In other words, much that is unconstitutional goes unchallenged by the Court and, if not challenged, becomes past practice and later is often used to support new alterations to the Constitution.

The Court is only a partial check on constitutional law. Congress, the body charged with making all law, as per Article I, Section I, is to responsibly check itself with the Constitution. Members of Congress take an oath to do so. The voter does not take an oath, but is expected to have greater loyalty to the Constitution then to political party, to be familiar enough with the Constitution to spot indiscretions, and to remove those who would defile it through ignorance or intent.

Like the legislative and executive branches, the Supreme Court too has a list of power. We count eleven. The Constitutions reads, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States; –between a State and Citizens of another State,– between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects” (See Article II, Section II.

Again, the judicial branch is limited by a list, and case types not listed are not federal jurisdiction. If a list did not exist, the Supreme Court could adjudicate wherever it wished, which clearly was not the intent of the Founders. Although not constitutionally required, it is a good idea for the Court to identify one of the eleven powers that gives it jurisdiction before it takes on a case and again when a decision is rendered. Such would remind it, and sometimes us, of its limited role.

In fact, unbeknownst to most, The Supreme Court may not be permitted to render judgment in a case if Congress puts them on notice not to. Congress was given much say with respect to the cases the Court could adjudicate. In only two of the case types noted on the list—public servants and those when a state is involved—does the Court have sole, or uncontested power. In all others Congress retains oversight, which means that they can deny the Court from adjudicating altogether and/or influence the Court’s decision.

Again the Constitution reads, “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Notice the wording, “under such Regulations as the Congress shall make.” Unfortunately, Congress has never used this power to “rein in” an unruly Court but it remains constitutional should they choose to do so.

Bottom line, the Supreme Court was never given the authority to exam all laws of Congress weeding out those that were “wrong” (constitutionally questionable), nor was it ever created to be entirely independent from Congress. Yes, it is a branch of government but Congress was left a definite supervisory roll over it. Do your members of Congress know this?

Harold Pease

The 10th Amendment

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