Supreme Court

Finding a Loophole around a Liberal Supreme Court

Earlier this week I posted an article regarding those on the left whining about the lack of a ninth supreme Court justice. You may review it here.

The author of the piece I quoted went so far as to accuse the Republican Senate of being “nothing less than an existential threat to the supreme Court,” for not confirming, or at least voting on Obama’s nominee, Merrick Garland. As if this is their duty to accommodate our beloved president, despite the Constitution making no such assertion.

This is the frustration, or impatience of the left. They can wait no longer to pack the high Court with leftists, giving them the means to finally transform America into the socialist utopia they’ve been dreaming of.

But the frustration of the right always seems to end up back at that dastardly decision, Marbury v. Madison (1803), which was the first U.S. supreme Court case to apply the principle of “judicial review,” giving it the power to void acts of Congress that they feel are in conflict with the Constitution.

Over the years, the Marbury v. Madison decision has seen judicial review morph into the high Court becoming the final arbiter regarding all things – legal, social and cultural.

The federal Courts, including the supreme Court, were not designed, under Article III, to adjudicate everything as they seem to today. The federal courts were set up specifically to deal with federal issues, beyond the scope of State Courts. These issues are described in Article III of the Constitution.

The list of cases that the supreme Court may hear first, having “original jurisdiction,” is extremely small and spelled out. In fact there are only three. “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.” Notice it states emphatically – a state shall be a PARTY. This was worded so that the supreme Court wouldn’t just meddle in individual states’ internal business, nor be bogged down with a plethora of federal cases.

However, the founders expressed that the Supreme Court may have appellate, or secondary jurisdiction in a wider range of cases, originating in the lower federal courts, as expressed in Article III, Section 2, of the Constitution.

This, as we are all familiar, is the way virtually all high-profile cases are decided these days. The supreme Court, assuming they agree to hear a particular case, receives it from a lower court and ultimately makes a final ruling, by which we then all must abide. It is what upsets those on the right, and why we say it is neither right nor proper to be ruled by nine, black-robed oligarchs.

At this point, due to a growing frustration on the right with the federal Courts, and specifically the Supreme Court – many are wishing for a way to override the Courts, or rid the nation of “judicial review.”

This of course is impossible – or is it?

To be accurate and despite the title of this article – there isn’t a way to override the supreme Court. But there is a way to usurp their authority – and it is written in the Constitution – Article III, Section 2, Clause 2. It reads: “with such Exceptions, and under such Regulations as the Congress shall make.”

What the heck does that mean? It means that Congress may pass a law – and with the law, include a passage that expressly prohibits the supreme Court from ever hearing the case. Therefore, whoever attempted to challenge the law, could take it no further than a federal district Court. Better still – they could pass stand-alone laws dealing only with supreme Court exceptions. Providing they were voted on and passed through both Houses and signed by the President – these laws would be binding. Neither the supreme Court, nor any other court, could do a thing about it.

Don’t take my word for it. Watch, listen and learn, from the following Hillsdale course.

Lower courts would be able to rule on the law in their various districts, but their ruling would apply only to that particular district. Other lower courts could rule differently, which would then apply only to the district for which they are assigned. This, according to Dr. Larry Arnn at Hillsdale College, who has forgotten more pertaining to the U.S. Constitution than you and I will ever hope to learn, would be quite interesting.

It would require the House, Senate and the President to be on the same page, which doesn’t happen often – but it does happen. The Republicans missed an opportunity to change our landscape back in 2005-2006, when they controlled both Houses and the Presidency. Just imagine the good they could have done. They could have tackled issues such as partial birth abortion, same-sex marriage, single-payer health care, etc., and prevented the supreme Court from even hearing any such cases, much less ruling on them.

Talk about missing a golden opportunity. Unfortunately, I would venture to say that 99% of lawmakers are not even aware of this. How could they be, as most have never read the Constitution.

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The Common Constitutionalist

The Common Constitutionalist, is a constitutional conservative who advocates for first principles – the Founders' original intent and enemy of progressives. He is Navy veteran and a martial arts expert. Smith considers himself just an average Joe with no formal journalism background – but rather than simply complain about the state of our nation, he took to the Internet to battle the left.

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