We are down to two branches of government

Power at the level of the federal government is a zero-sum game.  If one branch leaves power on the table because of scandal or the kind of partisan freeze-up that has seized the House of Representatives today, one or both of the other branches are going to pick it up and run with it.  You’ve heard for years about the “imperial presidency,” basically a lamentation by Great Thinkers about politics and democracy that the presidency, over the years, has attached to itself too much power.

Well, now it’s the Supreme Court’s turn to seize power.

We’re told all the time that our democratic form of government works because of the brilliance of the Founding Fathers, who in the Constitution established the three branches of our government – the Executive, the Legislative, and the Judiciary.  Our government has worked, we have been assured, because the three branches had what political scientists called “checks and balances” on each other. 

You remember the old saw that the House has the “power of the purse.”  The Senate has the power to confirm presidential appointments and ratify treaties.  Both houses of Congress, acting together, have the power to pass laws and to declare war. The President, as the Executive, has the power to make appointments, control our borders and oversee relations with foreign countries.  Bills passed by the Congress do not become law until signed by the President, who also has the power of the veto and the power of the pardon.

The judiciary, interestingly, derives its power in part from the Constitution, which gives it the “original” power to decide cases involving “ambassadors,” other “ministers and consults,” and “those in which a State shall be Party.”  Otherwise, the court must wait until laws have come into question and been adjudicated by lower courts before the Supreme Court can assert its powers of “appellate jurisdiction.”

But the court’s real power comes from Marbury v. Madison, the 1803 decision written by the nation’s fourth Chief Justice, John Marshall, who conceived of the idea, not written into the Constitution, that the Supreme Court has the power of “judicial review,” that is, the power to strike down and invalidate laws that violate the Constitution.  Marshall’s decision struck down Section 13 of the Judiciary Act of 1789 and ruled that the Supreme Court had the power to review laws passed by the Congress, a power that went beyond what the Constitution had said in giving the court power to decide cases between the states and to have “appellate jurisdiction” over decisions made by lower courts.

In Marbury, Marshall went so far as to say that “It is emphatically the province and duty of the judicial department to say what the law is,” putting a period, if not an exclamation point on the whole matter with the bald-faced assertion that “an act of the legislature, repugnant to the constitution, is void.”

With the stroke of his pen, Marshall seized for the Supreme Court power over the other two branches of the government:  Acts of the Congress – the legislative branch – and signed by the President – the Executive branch – can be overturned by the Supreme Court – the Judicial branch.

Have you noticed something here?  This is umpteenth time in the last year or so that I have written the words, Marbury v. Madison.  Why, you ask?  Well, it’s because two justices on the current Supreme Court, Alito and Thomas, have been referring to Marbury repeatedly, and not to use the court’s power to review cases on appeal, but to assert the court’s power to have the final say, even in ways that have not been brought to the court by the cases at issue.  In the cases involving both abortion and guns, the two radical justices have gone deep into the nation’s history to find ways to assert the court’s power to overturn laws or rulings that the court’s conservatives find distasteful, namely abortion and gun control.  Of course, stumbling around in the history books, Alito and Thomas both tripped over Marbury, and delighted at the supreme power the decision gave the Supreme Court, cited it in rulings that have gone way beyond the way the court exercised its power in the past.

I have been looking for a way to frame what the Supreme Court has been doing, a way to make its recent power-grabs clear and understandable.  Today I found it in a New York Times story about Judge David S. Tatel, a distinguished justice with a long career on the nation’s most prominent and powerful Circuit Court of Appeals for the District of Columbia. 

Ruminating on why he has found so much about the current Supreme Court’s decisions not only objectionable but simply wrong, Tatel noted that the cases in which the Supreme Court overturned long-standing precedents had something in common: both cases involved “aggrandizing the Supreme Court’s own power, and it’s the one branch of government that’s unelected.”

Zing!

We have known for several decades that the right wing has had a full-on, full-time campaign to take over the courts in this country, exercised whenever the Right had a Republican in the White House and Republican control of the Senate.  Now their campaign is really bearing fruit.  They have placed baby judges down in jurisdictions where only one or two judges are awarded cases, like Judge Matthew Kacsmaryk in north Texas, who infamously ruled that the Food and Drug Administration's (FDA) approval of the abortion drug mifepristone was illegal.  Kacsmaryk sits in Amarillo, Texas, where he gets 99 percent of civil cases, so right-wing lawyers file their cases in his jurisdiction when they go “judge shopping.”  Before being appointed to the bench by Donald Trump in 2019, Kacsmaryk worked for a Christian legal foundation that filed a case arguing against pharmacies carrying…wait for it…contraceptives.

So a right-wing president, Donald Trump, working with a right-wing foundation supported by right-wing billionaires, the Federalist Society, has appointed not only dozens of little Matthew Kacsmaryks and Aileen Cannons, but three of the right-wing justices who are undertaking to decimate the Supreme Court’s previous decisions and rule on new cases brought to them through a pre-arranged right-wing pipeline set up precisely for the purpose of the courts remaking the laws of this country.

That sounds an awful lot like one branch of the government, the Executive, conspiring to load up another branch, the Judiciary, with a team of puppet judges who will follow right-wing doctrine to disempower the third branch of the government, the Legislative branch. 

Just where are the checks and balances in this equation?  What can be done under the Constitution with corrupt justices like Alito and Thomas, who not only rule as they are told by the right-wing billionaires, but feast at their tables and sail on their yachts and fly on their Gulfstreams?  Nothing, that’s what.  Well, they could be impeached, but you tell me when the Democratic Party will have enough votes to remove a corrupt judge or justice by finding them guilty of abusing their power in the Senate. 

The so-called conservative movement in the Republican Party set out decades ago to achieve these goals.  They have raised and spent not just millions, but billions of dollars to carry out their plans.  Recently, Leonard Leo, he of the Federalist Society, was given 1.6 billion dollars by a single right-wing billionaire to spend as he wishes to pack the federal judiciary with judges and justices who will be friendly faces when the billionaire and his cohorts decide they want a law overturned, or a regulation squashed, or an entire federal government department like the Environmental Protection Agency defenestrated.  The extraction industries like oil, gas, and coal practically own the federal judiciary at this point.  And the racist states of the Old Confederacy have been empowered to run roughshod over the Civil Rights Laws of the 1960’s that have until recent years protected the rights of Black Americans who fought for hundreds of years for first their freedom and citizenship, and then for their rights as citizens to vote and be educated and earn a living like every other American citizen.

If you think this is all part of a big, evil plot, you are correct.  It is a plot to change the government from the way it was established in the Constitution to a government friendly to the principles put forth by the right-wing Republican Party – and all without a single Constitutional amendment.  They’re doing it with presidential appointments and decisions by the lower courts and the Supreme Court that are remaking our democracy and turning it into the very thing the Founding Fathers wrote the Constitution to change – an autocracy run by and for the wealthy few at the expense of the non-wealthy many.

Welcome to our two-branch government.  The only power we’ve got left is our vote, and they’re working hard to dilute and in many cases negate that power as well. 

Today we must face the question of how long will it be until they achieve their real objective, the one-branch government of a dictatorship, and what will we do to stop them.