Supreme Court

Get Rid of the Supreme Court? No Thanks

Pay no attention to those who want to abolish SCOTUS


“If we want to save some money, let’s just get rid of the court,” was the reaction of Republican presidential candidate Bobby Jindal, the governor of Louisiana, to Friday’s majority opinion locating a right to gay marriage within the text of the Constitution’s 14th Amendment.

Jindal’s comments signify a disgust widely felt on the right at the moment with a Supreme Court that failed either to strike down ObamaCare or to preserve the traditional definition of marriage. If the frustration feels familiar, it shouldâ€"it tracks with the contempt the left felt for the high court after the Bush v. Gore decision in 2000 resolving the disputed presidential election, and after the 2010 Citizens United decision that struck down some of the campaign speech restrictions of the 2002 McCain-Feingold law known as the Bipartisan Campaign Reform Act.

Getting rid of the Supreme Court would require either disregarding the Constitution entirely (not exactly the best campaign position for a candidate for a job whose oath of office includes a pledge to “preserve, protect and defend” the same document) or amending it somehow to deal with Article III, which vests the judicial power of the United States “in one Supreme Court.”

Even if all that political heavy lifting weren’t involved, however, there’s a strong case to be made that we’re freer with the Court than without it. Consider three cases from this term where the court stepped in to, essentially, protect the property rights of capitalists.

My favorite of the threeâ€"though it is a close callâ€"was today’s five to four opinion in Michigan v. EPA. There the court struck down a plan by President Obama’s Environmental Protection Agency to impose air-quality regulations that would have cost coal-fired electric power plants $9.6 billion a year to achieve benefits worth between $4 million and $6 million a year. The petitioners included not only 23 states, but also the National Mining Association and the Utility Air Regulatory Group. It was a member of the Utility Air Regulatory Group, Peabody Energy, that retained Harvard Law Professor Laurence Tribe to argue against President Obama’s EPA, thus triggering some of the most entertaining pre-decision drama.

The dean emeritus of NYU law school, Richard Revesz, who is a fine fellow, took to the op-ed page of The New York Times to predict that Tribe’s claims “seem unlikely to persuade a court.” Two other Harvard Law professors, Jody Freeman and Richard Lazarus, publicly attacked their colleague, Professor Tribe, for making arguments for the coal industry that they described as “baseless…ridiculous…wholly without merit.”

The coal industry isn’t exactly popular in polite circles these days. Michael Bloomberg’s Bloomberg Philanthropies teamed up with the Sierra Club for a campaign that boasts about how many coal-fired electric power plants it has forced closed. But our Supreme Court stuck to the law and protected the coal-burning companies who had nowhere else to turn.

The second case was decided by an eight to one margin. Here, too, the court ruled that the Obama administration had exceeded its authority under the law. The case, Horne v. Department of Agriculture, involved Fresno, Calif., raisin farmers Marvin and Laura Horne, who were forced to turn over some of their raisin crop to the federal government as part of a program to raise raisin prices by reducing the supply. The government’s position had been that if the Hornes didn’t want to give their raisins up to the federales, they were free to grow a different crop. Perhaps endive (Michael Dukakis’s favorite) would do, or kale.

The third case was lower profileâ€"I wouldn’t even have noticed it if not for a press release from the Institute for Justice, a non-profit libertarian law firm. It involves a business owner in Norfolk, Va., who posted a protest banner on the side of his building to resist its seizure by eminent domain. The IJ quotes Bob Wilson, one of the owners of Central Radio, exclaiming, “I am ecstatic! My local government violated my constitutional rights, but today, the U.S. Supreme Court restored those rights, and it restored my faith in our nation’s justice system.” In this case, Central Radio Company v. City of Norfolk, the Supreme Court did not issue a formal opinion, just vacated a lower court’s judgment and ordered a review.

The stereotypical Supreme Court petitioner is a discriminated-against minorityâ€"Oliver Brown trying to get his daughter Linda into a Topeka public school, or gay couples seeking to wed. It’s a sad commentary on our times that business owners and property owners need court protection from government assaults on their rights. They are, in some ways, the embattled minorities of our time. Imperfect as the court is, at its best it is capable of restoring faith.

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  1. No, of course not. As weak-willed as the court is when it comes to checking the abuses of the other branches, things would be even worse without it.

    What we need is the Censor.

  2. All that is needed is a 28th amendment.

    Article 1
    No person may initiate force, threats of force, or fraud against any other person’s self or property.

    Article 2
    Force may be used against those who violate Article 1.

    Article 3
    No exceptions shall exist for Articles 1 and 2.

    1. I Robot?

      1. I think we have time before the singularity.

  3. The left was making the same complaints just a few months back when the court decided to hear the subsidies case in the first place. And after Citizen’s United.

    People follow these court rulings like TMZ. And the only thing they care about is the result for their team. But, the justices themselves start with a conclusion and work backwards in the highest profile cases, so why should we be any different?

    But as bad as the court can be, and as inconsistent, it’s the only check we have against the feds.

    1. “it’s the only check we have against the feds.”

      I see what you mean. But the court is part of the fed. It has not been working so well as a check on the other branches, especially lately. I don’t advocate abolishing it. But I do advocate term limits on justices.

      1. That’s the whole flaw. In large part because of the entrenched parties, which the Founders inadequately defended us against, the idea of the branches fighting each other has not come to fruition at all in the manner hoped at the outset. Really, it’s more true to say that the branches have conspired and connived to strip the concept of limited government from the Constitution than anything else.

        1. Sure, but what’s the option? A parliamentary type system? The electoral college almost guarantees a two party system.

  4. ^This. But I’d reword it a little: Make it ‘entity’ instead of ‘person’. That way, it includes persons, groups and governments.

    In either IT’s version or mine, wouldn’t it stir up one atomic shitstorm?

    1. Groups and governments are made up of persons.

  5. Get rid of the executive and legislative along with it, then yes.

  6. Amend the Constitution to where the Nazghul are constrained by a Ring…One Ring to Rule Them All. Or just keep it like it is ’cause we are still the best form of Gov currently.

    1. Better yet, 315 million Rings, all wielded by people not in government.

      1. Exactly,the People vote to retain or not retain every SC judge,every six years. maybe 3 SC judges on the ballot in every two year cycle.
        Many states do that for their state and local judges.

        Then SC judges can be held responsible for rulings such as Kelo,Obamacare/SCOTUScare,and SS”M”.

  7. Why must we pay attention to every bit of zero-probability pandering that enters the public sphere?

  8. …and most of the time it’s at its worst.

  9. those types of stupid comments by Jindle don’t help the republicans. However since they are not ruling per the constitution most of the time and Obama is ignoring the constitution with out anyone doing anything about it we may as well get rid of the supreme court heck get rid of congress as well and lets just have a dictator. think about it what would be the difference between a dictator and what we have right now.

    1. This is an idiotic comment. Whatever you may think of Obama, comparing him to a dictator is stupid. It is apparent you’ve never actually lived in a dictatorship or you wouldn’t have made such a comment.

      Obama is leaving office in under two years, nobody has suggested otherwise. He’s regularly pilloried in the press. Administration officials are regularly dragged to Congressional hearings. Obama has had some of his programs stopped (for example, his immigration program) and he has lost multiple times in the courts.

  10. Really? I thought the first bit of that comment was vastly more stupid than the entire suggestion. How much do people think the federal courts receive every year to operate? It’s barely a rounding error in the federal budget…

  11. There’s a final solution, and I have discovered it-

    Just make my supreme overlord and dictator and things will be perfect.

  12. With the Supreme Court out of the way, President Jindal will have a much easier time creating a Christian theocracy. Because, you know, apocalypse and shit.

    1. The Imperial Senate will no longer be of any concern to us. I’ve just received word that the Emperor has dissolved the council permanently. The last remnants of the Old Republic have been swept away…. Fear will keep the local systems in line, fear of this battle station.

      1. this Supreme Court HAS “swept away the remnants of the Republic”,when they can make up law by saying a law says things it doesn’t say.
        They have killed the “rule of law”,now US law is whatever a majority of 9 judges say it is,regardless of what Congress intended or enacted into law. We are now ruled by an oligarchy of 9,a junta.

  13. Keeping the supreme court around makes sense if you think about the branches of the government in a cynical and pessimistic manner: that is, the court isn’t there to ‘do stuff’ or make the world a better place or whatever; it’s there to be a thick, sludgy, disgusting marsh that;s supposed to slow down the march to tyranny of the other branches.

    It’s a shame James Madison isn’t more popular these days. I’m pretty sure he intended each branch to exist primarily to inconvenience the other branches. We’re all safer when the wolves are busy fighting each other.

  14. SCROTUS needs a Stone Cold Stunner

  15. As much as the right may holler about this decision, nothing will ever be as epic as the whining the left did when Heller was decided. Oh the left was furious. Of course our rights shouldnt be dependent on what a couple of people in robes say, but i guess it doesnt work that way.

    1. Don’t get too excited. It was 5-4 and if you ever get another progressive nutball like Sotomayor in place one of them will happily go shoot someone themselves just for a chance to overturn that decision. Judges appointed by Democratic presidents are nothing if not 100% loyal to the cause.

  16. The stereotypical Supreme Court petitioner is a discriminated-against minority…gay couples seeking to wed. …”

    How can they be a minority when their is majority support?

  17. Since the Nazgul have said that all states must recognize the marriage licenses of states that allow gay marriage because equal protection, does this now mean that all states have to recognize my CCP? I know, I know the Nazgul don’t do consistency, but a girl can dream.

  18. Yeah, I agree. SCOTUS is far from perfect, but the alternative is “Let Congress pass any law it wants,” which is far worse.

  19. This is pretty damn simple. Is there a single power the federal government could not claim if we got rid of SCOTUS? The obvious answer is no. Are there times their lust for power has been thwarted by SCOTUS? The answer is yes. Other than desperately wanting to prove he is every bit the idiot he appears to be I can’t imagine why Jindal felt the need to say things.

  20. Just as Lucille said I didnt know that anyone able to get paid $7158 in four weeks on the computer .You can look here?????????????

  21. Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.
    This is wha- I do…… ??????

  22. We should not get rid of the top court,but make them more responsible to the Constitution and the People. First,an amendment to require SCOTUS judges to pass a retention election every 6 years. if they don’t win re-election,a new justice is nominated and seated. NO lifetime as SC judge,unless the People keep them there.

    Second,an amendment requiring ALL Federal justices follow the Constitution AS WRITTEN and original intent,no “penumbras” or “what France does” entering into their considerations. NO making up their own law.

  23. This article doesn’t make any sense. When the SCOTUS makes a decision, (being an unelected branch of government) voters get screwed if the decision involves overturning a law. This is government by coercion. An example would be Roe v. Wade or Obergeffen. You can’t justify an unelected group of officials making the law in a democratic country. Forget “checks and balances” they don’t matter when Congress and the President get re-elected every couple of years. I shouldn’t have to surrender my taxes to an unelected government. Democracy is democracy. It shouldn’t be too difficult to understand fore Reason columnists.

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