Judicial Review

Every so often in American history, the Supreme Court seems to forget that it is a coequal branch of government. In such moments, the court adopts a philosophy of judicial supremacy. Such a moment has come once again.

Presidents Thomas Jefferson and Abraham Lincoln would be aghast. In the 1820s, Jefferson described the judiciary as “the subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederated fabric.”

Jefferson continued, “They are construing our constitution from a co-ordination of a general and special government to a general and supreme one alone.”

That same decade, Jefferson also wrote that seeing judges as “ultimate arbiters of all constitutional questions” is “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” He was right then, and he is right now.

Lincoln, in his first inaugural address, was just as forceful. He accused the court of usurping the people when he stated, “If the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made … the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.” It is as if Lincoln described today.

Patriotic Americans who want to protect women’s freedom, their lives and their planet will stand against the court’s assault on freedom. And they’re in good company. Together, we will summon the strength.

As for where to start? Judicial review. That is the source of the court’s power. It is time for Congress to check that power with legislation stipulating that all of the court’s decisions require a supermajority of seven votes.

Originally printed on as a letter to the editor of the Richmond Times-Dispatch. Click here to view.