4. Supreme Court Decisions

Supreme Court Decisions as Precedent – Is it a Good Thing?

Article III, Section 2 of the US Constitution states in part, “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.”

When our Constitution was being debated, the Anti-Federalists feared and distrusted a strong Central Government but trusted a Jury of Peers to determine facts in a case.  They therefore insisted on a clause limiting the power of the Supreme Court.  This clause in effect meant that a Federal Court drew its power from the Congress and not from the Constitution.  The Founders believed that a runaway Court could be dangerous, so they limited its power in Article III, Section 2 of the Constitution.

In a very early Supreme Court Case, Wiscart v. D’Auchy in 1796, Chief Justice Oliver Ellsworth sided with the Constitution when he wrote, “If Congress has provided no rule to regulate our proceedings, we cannot exercise appellate jurisdiction.”

In 1810, the Supreme Court, under Chief Justice John Marshall, opined, in DuRousseau v. United States, despite the precedent set 14 years earlier and contrary to the Constitution, that appellate jurisdiction is created by the Constitution, not the Judiciary Act of 1789.  In this instance the fox was watching the hen house.  And, by so doing, the fox created a precedent via an activist judicial decision.

Let’s examine this.  The Constitution authorizes three branches of government.  The Constitution states that the Executive and Legislative Branches draw their powers from the Constitution and are thereby coequal.  It also states that the Federal Courts derive their powers from the Congress, which makes them inferior to the other branches.  All three branches are also by definition a bureaucracy.  It is self evident that the first goal of a bureaucracy is self preservation.  Marshall knew that if his power came from Congress, then Congress could limit his power.  This is the same Marshall who expanded the power of the Courts to a coequal branch with his Marbury v. Madison decision, which gave the judiciary the power of judicial review.  The Founders believed the People were the reviewers of legislation through elections, not the Supreme Court through judicial review.

The ultimate question is, should precedent matter?  A good decision, based on fixed, uniform standards of right and wrong, is an eternal good decision.  A bad decision is likewise an eternal bad decision.  The purpose of the appellate court system is to get it right.  These courts are occupied by fallible humans and can make mistakes.  Everyone agrees that the Dred Scott decision, which ruled that the United States had no authority to prohibit slavery in federal territories and that slaves were not protected by the Constitution, was an incredibly wrong decision.  Should an unconstitutional standard of precedent allow the Dred Scott decision to be the law of the land?  Of course not.

The left seems to believe that decisions contrary to their progressive belief system should be reviewed.  But try and argue for a review of Roe v. Wade, which makes abortion on demand the “Law of the Land,” and the arguments of the sanctity of precedent spew forth.

We need to realize that the Supreme Court is a political organization that has and will continue to err in judgment.  We also need to realize that there is no Constitutional basis for precedent in judicial decisions.  The Congress needs to assert itself by enacting legislation that invokes Article III, Section 2 of the Constitution to ensure that bad decisions do not live forever.  Once a freedom is lost, it is very difficult to get it back.

One Response

  1. Not exactly certain when this article was written, but I agree.

    I would begin by over turning Marbury and returning the SCOTUS to its original jurisdiction and power. Then I would turn my attention to Wickard v. Filburn (and so return Congress back to its restricted powers), Cooper v. Aaron (again putting the reins on the SCOTUS), and Roe v. Wade (reestablishing Life to its place as an “endowed,” “unalienable” right).

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