Unconstitutional

Today I listened to another episode of the More Perfect series about the Supremes put out by Radiolab. I've mentioned a couple others in the series and there is one more for me to listen to. This episode is 36 minutes.

The question posed in this episode is how did the Supremes become so powerful? They can strike down laws, overturn executive actions, declare same-sex marriage is legal, elect a president, and what they say goes.

To answer that we go back to 1800. The Constitution says there shall be a Supreme Court, but says almost nothing beyond that. As now, the political parties then are quite polarized. John Adams, in his final days (take that, Mitch McConnell!) nominates John Marshall as Chief Justice and also nominates a slew of federal judges. The last of these orders don't actually get out the door when Thomas Jefferson, of the opposite party, takes office. Jefferson is annoyed all these new appointees are of the other party and sits on them. One of these appointees sues and, using a recently passed law, takes the case straight to the Supremes. Marshall is trying to develop some dignity and power for his court. He and the other justices hear the dispute. Marshall realizes if says Jefferson can ignore what the previous president did there would be no end to the political mess. If he says Jefferson can't ignore his predecessor, Marshall has no way to enforce his decision. So Marshall flips the whole thing around. The Court rules that the law that allowed the thwarted judge to go directly to the Supremes is unconstitutional and the Court should not have heard the case.

This was the first time the Supremes declared they have the power to rule laws to be unconstitutional.

Marshall did find limits to his power. About 30 years later Andrew Jackson wanted to do some nasty things to Native Americans, such as the Trail of Tears. Marshall and the Court said Jackson's move was unconstitutional. Jackson essentially replied who is going to stop me? You and what army?

That question hung in the background until the 1950s and Brown v. Board of Education. To enforce the decision President Eisenhower called in the troops. That army. In this case the Supremes had power because the president said the Court did. Even so, there is still lots of defiance of the Supremes in issues of race. And if another branch of the gov't doesn't have their back, the Supremes don't have a way to enforce what they say.



Back in 2013 the North Carolina legislature, heavily GOP, created new restrictions on voting – photo ID requirements, a reduction in early voting days, elimination of same-day registration, and of out-of-precinct voting. The appeals court ruled the provisions "target African Americans with almost surgical precision" and thus a violation of the equal protection clause. It went to the Supremes. The Court was evenly divided on whether to lift the stay, so the law is overturned.

NC Republican Carter Wrenn recently talked about the bill's passage:

“Of course it’s political. Why else would you do it?” he said, explaining that Republicans, like any political party, want to protect their majority. While GOP lawmakers might have passed the law to suppress some voters, Wrenn said, that does not mean it was racist.

“Look, if African Americans voted overwhelmingly Republican, they would have kept early voting right where it was,” Wrenn said. “It wasn’t about discriminating against African Americans. They just ended up in the middle of it because they vote Democrat.”