Recent statements by Republican presidential candidate and former House Speaker Newt Gingrich regarding the powers of the Supreme Court have opened up a conversation that is crucial to every American, especially now that the court has agreed to consider the case of the constitutionality of the Affordable Health Care for America Act (Obamacare) and the individual mandate.
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The argument that the Supreme Court has been entrusted with the power of judicial review dates back to the case of Marbury v. Madison in 1803, which established the Supreme Court’s power to strike down an act of Congress. Chief Justice John Marshall asserted that it is “emphatically the province and duty of the judicial department, to say what the law is.” The Supreme Court is the arbiter between the people and the legislature and protects the people from unlawful actions by Congress. The dilemma is, and has always been, that the Constitution does not provide a remedy for an overreaching Supreme Court.
While many believe that a Supreme Court justice, with a lifelong appointment, will rule on legislation based on its constitutionality, an unchecked Supreme Court could impose its will on the country against the will of the people.
Many decisions have been made by the Supreme Court under the auspices of “constitutionality” that one could argue are not constitutional, i.e.: Plessy v. Ferguson, which upheld the doctrine of “separate but equal”; the repeal of the Civil Rights Act of 1875 that allowed racial discrimination to continue and overturned an act of Congress; and Dred Scot v. Sanford, with a ruling that former slaves or descendants of former slaves were not protected by the Constitution and could never be citizens. More recently, with the decision of the Supreme Court in Kelo v. City of New London, the Supreme Court supported the city of New London and allowed individual private property rights to be subjugated to the rights of another private entity promising economic enhancement of the city of New London.
These and many other decisions by the Court have undermined the individual rights and liberties guaranteed to us in the Constitution.
The founding fathers anticipated the challenges of the supremacy of one branch over the other, which is why they created the checks and balances of the executive, judicial and legislative branches.
As we look forward to the 2012 election, we must consider that the next President will quite possibly appoint four justices to the court. Justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsberg and Stephen Breyer are all well into their seventies. The most recent appointments by President Barack Obama of Justices Sotomayor and Kagan have most certainly pushed the court to the left. Are we willing to continue to allow the Supreme Court to become one which possesses less judicial restraint and more legislative activism?
The Supreme Court has granted an unprecedented five and a half hours over two days to hear oral arguments challenging the constitutionality of Obamacare in March or April of 2012 and will hand down their decision by the end of June.
But, lest we forget… it was Congress and the President who passed Obamacare. Hopefully, in this case, the Supreme Court will be our ultimate defender against an unrestrained progressive administration.