The world today is obviously different than it was in 1800. With that decision, Marshall simultaneously excoriated the Jeffersonians as scofflaws, gave them the substantive ability to persist in their efforts, and cemented the role of the Supreme Court as the arbiter of law.Īnd he did all of that because Adams, as “lame duck,” pushed partisan politics to provide a Federalist-led judiciary. While Madison and the Jefferson Administration were found to have broken the law, he wrote that the Supreme Court was not empowered by the Constitution to give William Marbury the relief he wanted. The weakest co-equal branch - the judiciary - could have been run over roughshod by the passions of the political branches. Our fledgling nation, buoyed by the Constitution’s delicately tense “checks and balances,” may have never gotten off the ground. If Marshall stopped there, Jefferson probably would have told the Supreme Court to pound sand. Just because the new administration didn’t like the hardball politics of the former president, that did not give them legal grounds to undermine valid prior acts. He was Jefferson’s secretary of state, and Chief Justice Marshall wrote that he broke the law by refusing to deliver Adams’ final appointments. If you actually read the case, James Madison - yes, the famous founding father - lost. Thus, its political path was fraught with peril. The Supreme Court had yet to assert itself as a co-equal branch of government. The fight between Adams’ Federalists and Jefferson’s Democratic-Republicans was likely even more consequential than our current battle. But sometimes our ideals and our reality come into conflict. And they are right it absolutely should be. There are plenty of paeans to the idea that the Supreme Court is above politics. Madison.Īs always, our history is instructive. The negative campaigning was brutal, even by today’s standards.Īnd the court appointments controversy was the basis of the famous Supreme Court case Marbury v. Would it surprise you to know that the outgoing president was John Adams? While the former vice president - and electoral victor - was Thomas Jefferson? The immigration and “fake news” laws were the Alien and Sedition Acts. I don’t think that’s going to work in a republic, in a civil society.The Senate, controlled by the same party as the outgoing president, quickly confirmed the appointments during the “lame duck” session. “We have decided,” he said according to The Associated Press, “that rather than confront disagreements, we’ll just simply annihilate the person who disagrees with me. Speaking to The Heritage Foundation to mark 25 years on the Supreme Court, Thomas did not cite the Garland blockade but noted a decline in civil behavior. Later Wednesday, Justice Clarence Thomas lamented that the broken confirmation process was a sign of larger problems. In his last availablity on Capitol Hill before the election, McConnell refused to entertain the possibility that the Senate may be forced to entertain a more liberal judge next year, though there may be enough centrist Republicans and those deferential to presidential prerogative to confirm a justice like Garland. Republicans have blocked from even holding hearings on the Garland nomination for more than seven months, and Senate Majority Leader Mitch McConnell (R-Ky.) has said the Senate will not confirm Garland in the post-election lame duck. The Founding Fathers would roll over in their graves.” It would turn our Justice system and our democracy on its head. “The Supreme Court could dwindle to 7, then maybe 6, Justices. “We need to treat it like the constitutional crisis it will be if Democrats don’t take back the Senate majority,” Reid said on Wednesday night in an email to members of the liberal Progressive Change Campaign Committee. Under Reid, Democrats changed the Senate rules to allow all nominees but Supreme Court appointments to be approved by a majority vote. Senate Minority Leader Harry Reid has already suggested lowering the bar for Supreme Court nominee from 60 votes to a simple majority. John McCain (R-Ariz.) said earlier this month the GOP would be “united” in blocking a Clinton appointment, remarks he later softened.Īn indefinite GOP blockade of a Supreme Court nominee would almost certainly lead to an erosion in the Senate’s supermajority requirement. That’s a debate that we are going to have,” Cruz said, in remarks first reported by The Washington Post.Ĭruz was unlikely to vote for any Democratic nominee given his conservative ideology, but his remarks could indicate a broader shift within the GOP to halt Democrats from shifting the court’s balance to the left. I would note, just recently, that Justice Breyer observed that the vacancy is not impacting the ability of the court to do its job. There is certainly long historical precedent for a Supreme Court with fewer justices. “There will be plenty of time for debate on that issue.
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