As election day fast approaches, our nation’s two major political parties stand at odds over whether the late Justice Ginsburg’s Supreme Court seat should be filled before the inauguration of the 46th president of the United States. The Republicans argue that it is their constitutional duty, as the elected party in control of both the White House and the Senate, to fill the seat and argue that it must be done with dispatch so a full court may hear any election result dispute that reaches that level. The Democrats argue the move to quickly fill the seat is purely political and could usurp the role of the electorate in choosing their government. They also threaten “court packing”-adding members to the Supreme Court to “ideologically” balance it -if they gain sufficient control of Congress in the upcoming election. As argued below, we place too much importance on the composition of the Supreme Court and too little on those on whom we depend to enact laws.
The exploding controversy over whether and when to fill this seat on our highest court underscores the enormous importance we place and responsibility we bestow upon our third branch of government-the judicial branch and the Supreme Court. This important responsibility of the Court is of course deciding whether congressional or executive action comports with the Constitution and laws of the United States. This judicial power, termed judicial review, is not spelled out in our Constitution nor is it found in United States statutory law.
Ironically, judicial review’s genesis is a dispute involving judicial appointments made by lame duck President John Adams after losing the election of 1800. President Adams made the appointments pursuant to an act Congress passed prior to him leaving office. After President Thomas Jefferson took office in 1801, several appointees, including William Marbury, having not received their commissions to take office, sued then Secretary of State James Madison to compel delivery. The Supreme Court found that while Mr. Marbury had sought the proper judicial remedy-a writ of mandamus commanding Secretary Madison to deliver his commission-that the provision of the Judiciary Act of 1789 under which he sought relief was unconstitutional as it improperly extended the original jurisdiction (types of cases that can first originate) of the Supreme Court. Thus, the case was not properly before the Court, so no commission.
Since this watershed decision in Marbury v. Madison, judicial review has been viewed as a key judicial power and a crucial aspect of our nation’s system of checks and balances. To many, as Justice Ginsburg’s seat remains open, important rights hang in the balance: healthcare rights, women’s rights, and religious rights. Many seem to feel that their rights will be irrevocably changed depending on which party is allowed to fill her seat.
I am not advocating against judicial review, but the other side of the argument is that the existence of judicial review takes the responsibility of ensuring the passage of responsible laws that comply with the Constitution away from Congress. One could argue that legislators have become lazy as there is a Supreme Court to which to punt difficult issues on which taking a stance could cost reelection. Doing so, however, politicizes the one branch of government-the judiciary-that, with lifetime appointments, is not supposed to be political. The debate on whether a law is constitutional should originate in the Congress and take place across the aisles. Put another way, as the appointment drama unfolds, we as citizens will have the privilege of watching our Congress argue over who should be appointed to do their job.
Perhaps, as citizens we have also become lazy as well by not giving proper focus to Congressional races and to the candidates for those seats. As I write this article, the national focus seems to be on the appointment of our next Supreme Court justice and the presidential race and perhaps not enough on the fact that we have a Congress who cannot agree on a funding bill or a new stimulus package, and whose members, in an environment where hypocrisy has become the norm, seemingly spend most of their time trying to spin their past statements. Responsible government requires responsible laws and Congress is the only branch of government that is authorized to enact them. As citizens, we can exercise a judicial power of our own and vote legislatures out of office who cannot get the job done.