The Role of the US Supreme Court
During the nineteen-fifties through the sixties, the US Supreme Court implemented a pattern of activism which continues to this day. The Court’s rulings on controversial issues have sparked debates over whether or not the Court was overstepping its bounds which are defined by the US Constitution and elaborated on in the Federalist Papers. Some of the Courts rulings, such as the ban on segregation in Brown v. Board of Education resulted in an outcome that I would agree with. Other rulings, such as Roe v. Wade, which resulted in the legalization of abortion, I do not agree with. However, each one of these ruling is wrong in the sense that the Court does not have the authority to grant rights not explicitly given in the Constitution. Instead, these issues should have been decided in the legislature.
The Founding Fathers saw the need to set up a judiciary that was independent from the other branches in order to guard against tyranny. Alexander Hamilton demonstrated this when he wrote, “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”[1] He goes on to say that certain limitations to the legislature can only be preserved through the courts “whose duty it must be to declare all acts contrary to the tenor of the Constitution void… they ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”[2] What Hamilton is saying here is quite simple. In order to guard against tyranny, whether it is from one or from the masses, an independent judiciary is essential. There is no liberty if the power of judging is not separate from the power to legislate or of the executive. Furthermore, it is the Court’s duty to declare all acts of the legislature or executive that goes against the fundamental law of the Constitution to be void, using the fundamental law to do so.
The Court did not stop with Brown v. Board of Education. Jan Greenburg writes, “It began to see itself as a vital protector of rights and liberties, including those not specifically addressed in the Constitution… It became a moral compass.”[3] By granting rights not explicitly given in the Constitution, the Supreme Court has overstepped its bounds, taking on the role of the legislature. Thus, it has no longer become independent of the legislature, but is acting as an arm of the legislative branch. Instead of guarding against tyranny by upholding the fundamental law of the Constitution, the Court is in danger of propagating a tyranny of the judiciary and is violating its Constitutional role.
In conclusion, whether one agrees or disagrees with the outcomes of a Court decision which grants rights not explicitly given in the Constitution, the Court is in error when doing so. An independent judiciary was set up in order to guard against tyranny and to uphold the fundamental law above all else. When the Court finds rights not granted in the Constitution, it takes on the role of the legislature and violates the very Constitution it is supposed to protect.
[1] Alexander Hamilton. Federalist Papers #78. http://www.foundingfathers.info/federalistpapers/fedindex.htm
[2] Ibid.
[3] Jan Crawford Greenburg, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. (New York: The Penguin Press, 2007), 24.