Blackstone, Marshall, Court Packing, and RBG

So, we expect the President to nominate a Supreme Court justice within a week. This is news but it should not be an earthquake in Washington, yet it is. Why?

In large measure, it harks back to Marbury v Madison, the case that established judicial supremacy over the constitutionality of a bill. Thanks, Chief Justice John Marshall. I’m actually fairly well persuaded by his reasoning that he got the meat of the argument correct. Yet in a curious reversal of normal procedure, after he heard the arguments and found for the plaintiff (A Justice of the Peace in DC William Marbury) whom Jefferson declined to send his commission to, a clear duty of Secretary of State James Madison.

Then and only then, did Marshal by finding the Judiciary Act of 1789 was unconstitutional, violating Section III of the Constitution by giving the Supreme Court original jurisdiction where the Constitution gave it only appellant jurisdiction, Interestingly, in something current readers will recognize this was a case of a Writ of Mandamus, just as the revocation of the FBI’s charges against Lieutenant General Flynn is.

A Writ of Mandamus is sort of a catch-all for when there is no other relief available. Blackstone says in the third volume of his Commentaries, quoted by Marshall that:

‘In all other cases,’ he says, ‘it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.’And afterwards, page 109 of the same volume, he says, ‘I am next to consider such injuries as are cognizable by the courts of common law. And herein I shall for the present only remark, that all possible injuries whatsoever, that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are, for that very reason, within the cognizance of the common law courts of justice; for it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.

I include this mostly as a reminder on how US law grew out of the English Common Law. In any case, Madison v Marbury is really an insignificant case involving not very much, except for the rendering invalid of  The Judiciary Act. This is where the Court obtained the power to invalidate a law duly passed and signed.

Not much else bears on the subject until we get to the 1930s. The Supreme Court was deluged by a huge number of cases contesting the constitutionality of almost all the New Deal legislation, and nearly always finding it unconstitutional. The old conservative federal courts at work, as usual. But Franklin Roosevelt was incensed, he wanted to run the economy centrally from Washington, because he was smarter than the average citizen and knew what was best for them, and what was best was a cradle to grave welfare system. He basically owned Congress, with supermajorities subservient to his every whim, but the Court was blocking him.

This is the point where in 1937 he threatened to pack the court. The Democrats in Congress, to their credit, were aghast at the effrontery and the threat to the Consitution, but he submitted his bill to the House (as was customary), if I recall it never came to a vote, then he submitted it to the Senate with the same result. And so he was stymied, as designed by the founders.

But the threat scared the Court, and suddenly it changed course and we got the New Deal which made the Great Depression both longer and worse than it had been. To the point that the man that ended it was a guy by the name of Adolph Hitler.

From that time on, the Democrats have used the Court as a super legislature, doing things that the American people would never approve of. The two things we speak of most are abortion and gay marriage, neither things that would pass in any American Legislature, other than California, maybe.

In short, we live in what can be fairly termed a kritarchy, a regime ruled by judges.

And that makes the next Supreme Court Justice a matter of life and death both for the Republic and for the Democrats.

About Neo
Lineman, Electrician, Industrial Control technician, Staking Engineer, Inspector, Quality Assurance Manager, Chief Operations Officer

11 Responses to Blackstone, Marshall, Court Packing, and RBG

  1. audremyers says:

    Breathtaking article. I knew this coming appointment and confirmation was important – never more so, it seems – but the history behind it was unknown to me. Thanks for the history lesson.

    Liked by 2 people

  2. Nicholas says:

    Fascinating and rather different from the way ours works over here – though I think we’ve got ourselves into various contradictions.

    Liked by 1 person

  3. the unit says:

    I’m being quiet. Lot’s on my mind these days.
    Most causing a digestive disorder. 🙂
    Won’t go over it all again. More folks got bigger problems than me.
    Just a short short mention. Gulf storms get a participation award. Daughter RN getting slugged out in Behavioral Medicine (5150 and such) at Baptist Hospital and no transfer out to another department for a couple of weeks, takes my cake.
    🙂 , no we ok though.

    Liked by 1 person

  4. JessicaHof says:

    That’s a really good and informative piece, dearest friend x

    Liked by 1 person

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.