“I wanted to have a career in sports when I was young, but I had to give up the idea. I’m only six feet tall, so I couldn’t play basketball. I’m only 190 pounds, so I couldn’t play football, and I have 20/20 vision, so I couldn’t be a referee.”
Presently, millions of Americans are swept up in the glee and excitement of March Madness. Like hawks eyeing prey, our eyes are glued to our TV’s. As our brackets are busted, we hope and wait incessantly for the number one seeds to be put out of the tournament, rooting for the “little guys.” Thanks to the technological advent of the instant-video replay, the fallibility of the striped, sports arbiters can be viewed by fans across the globe. With super-human focus (ADD be damned) we hone in on the actions and inactions of the court referees, screaming at the TV every time a bad call is made by a member of the officiating body. Oh, the injustice!
Whether it be a referee or “indisputable video evidence,” etc., it is natural for humans to seek out an arbiter to settle disputes and remedy the injustices of life. As children, we often pursued mom or dad to settle countless sibling disputes. In elementary school, many of us were told to quit “tattle-telling.” Time and again each of us have undoubtedly turned toward those whom we saw as being the “ultimate authorities” to behoove us with their unerring wisdom and to set the world right again.
As Americans, we have come to rely upon and trust in the idea – the sacred assurance – of a blind and equally applied system of law and justice: a system where the US Constitution reigns supreme and the arbiters are honorable and unbiased, always adhering to the rules of the game. Yet, is it actually just a form of collective “madness” that we put such trust and faith in our various officiators, expecting each one to rule with complete perfection? Whether dressed in black and white stripes or cloaked in long, distinguished, black robes, our “ultimate arbiters” are no more than uniformed and titled imperfections. They are as human, and as fallible, as you and I.
“Referees are only human, I think.” ~ Phil Kearns
Ever since several ideologically-driven judges ruled against President Trump’s executive orders enacting a pause on travel and refugee admittance from a handful of known terrorist hotbeds, many Americans have expressed a belief that the Supreme Court of the United States (SCOTUS) will “fix” these erroneous edicts from the lower courts and ultimately rule in favor of the President. Given the Supreme Court’s track record – a record replete with rulings without grounds in Constitutional law and freckled with partisan ideology – why do so many Americans still seek out the Supreme Court for rectification? Thomas Jefferson stated in 1820, “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps” (emphasis mine).
Isn’t it just “magical thinking” on our parts to have such credulous faith in the blemished bench of the Supreme Court?
“Trouble is, we call politics a game, but it isn’t one. There is no referee, and the teams make up the rules as they go along. You can’t cry foul or offside in politics. Almost anything goes.” ~ Michael Ignatieff
There is a common misconception about America’s governmental structure: the misconception is the belief that all three branches of our government are equal in power. In actuality, the founders designed the Constitution and structured our federal government so that the Judiciary branch would be the weakest of the three branches. “Judicial review” as we now know it is not found in the Constitution. Regarding the idea of judicial review, Thomas Jefferson wrote in 1815, twenty-seven years after the ratification of the Constitution, “Certainly there is not a word in the Constitution which has given that power to them (the judiciary) more than to the Executive or Legislative branches.”
In reality, however, our elected representatives (Presidents included) have over time allowed the judicial branch to roam wild, unchecked and unabated, gorging itself on the livestock of power and influence. It began with Marbury v. Madision (1803) when Justice Marshall declared a new power for the Supreme Court: judicial review. Slowly, but steadily, the Judiciary has breached the divisions of powers and has granted itself more and more authority. America’s Judicial branch now reigns supreme above the Legislative branch, above the Executive branch, and above the Constitution itself.
“This member of the Government (the Judiciary) was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.” ~ Thomas Jefferson (1825)
Let’s review just a few of the pockmarks which have scarred the Supreme Court’s preferred image of infallibility and God-like wisdom (aside from Roe v. Wade and Obergfell v. Hodges in which SCOTUS blatantly breached the separation of powers by literally legislating from the bench and by disfiguring the Constitution).
- Dred Scott v. Sandford (1857): This was the second time that the Supreme Court had ruled an Act of Congress to be unconstitutional (Missouri Compromise of 1820). In a blatant and confounding act of judicial activism, the justices ruled that “free negro[es] of the African race” were not and never could be citizens of the United States.
- Plessy v. Ferguson (1896): The Supreme Court in this case is credited with establishing the “separate but equal” doctrine of segregation. Had the Supreme Court not made such an erroneous ruling in this case, then there would have never been a need for Brown v. Board of Education of Topeka (1954).
- Buck v. Bell (1927): The Supreme court ruled in an 8-1 decision that it is perfectly legal for the state to forcibly sterilize anyone considered “feeble-minded” or possessing certain undesirable traits. Reflecting upon the victim’s mental capacity, the victim’s daughter’s odd physical appearance, and the victim’s mother’s history of prostitution, Supreme Court Justice Wendell Homes Jr. stated, “Three generations of imbeciles is enough.”
- Korematsu v. United States (1944): The Supreme Court ruled that it was totally okay to imprison an entire race of people in internment camps (in this case it was the Japanese during WWII). It is worth noting that, to this day, this case has never been overturned.
- Kelo v. City of New London (2005): The Supreme Court ruled that a business (in this case it was a pharmaceutical company) can kick you out and demolish your home if that business wants to build on your property. This is all in the interest of the “public good” of course. The tragic irony of this case is that the pharmaceutical company ran out of funds and there is now a landfill where homes once stood.
Given the fact that the Supreme Court is prone to the inescapable condition of human imperfection, it would be unwise for us to rely upon the Judiciary branch of government to remedy its own injustices and certainly not to reign in its own power. So, do we wait complacently until the robed oligarchy become despots? Do we sit idly by, hoping for our representatives to muster the courage to curtail the usurpations of power by the judicial branch? Or, perhaps, now is the time for we the people to begin officiating the game, blowing the whistle on the Judiciary’s flagrant fouls.
You can read about the checks and balances that were proposed by some of America’s founders (including Jefferson) by clicking on the links below.