Judicial Myth: The Supreme Court Is The Final Arbiter, They can Create Law, And Only They Can Determine Constitutionality

Share Button

A judiciary, left unchecked and unaccountable, will always expand, broaden, or increase its jurisdiction. This is a natural occurrence of power, and therefore it must be constantly controlled, like a fire.

This is the final part of a four part series regarding myths about our judicial branch. Here are the links to the previous posts:

Part 1 – Myth: The Judicial Branch Is Equal To The Other Two Government Branches
Part 2 – Myth: Federal Judges Are Guaranteed A Lifetime Appointment
Part 3 – Myth: The Judiciary’s Role Is To Protect The Minority From The Majority

We have allowed the judiciary to elevate themselves above the executive branch, above the legislative branch, above The Constitution, and for some, even above God. Even though the judiciary has no constitutional authority to do so, they create law, an enumerated power that is only given to congress. We also allow the judiciary to execute law, which is an enumerated power only given to the executive. We also look to the supreme court as the ultimate authority on any law, and whatever they say about any law becomes law and is the final word. However, The Constitution gives the judiciary no such power.

This misconception and attitude toward the judiciary was perfectly illustrated in an episode of Seinfeld I stumbled upon recently during an extremely rare occasion of channel surfing. In the fifth episode of the sixth season entitled “The Couch” (1994), Julia Louis-Dreyfus is asked from what she gets the right to abortion. She indignantly stands and then shouts in total arrogance “The supreme court gives me the right to do that!” She stomps off as if it is a mic drop moment.

Later in the episode, she is having a sappy conversation with a new boyfriend. She wants to determine if her boyfriend is okay with killing unborn babies, so she makes up a story about a friend, saying, “She got impregnated by her troglodytic half brother… and decided to have an abortion.”

Her boyfriend deeply ponders on the made-up situation, and thoughtfully and determinedly responds, “You know, someday, we’re going to get enough people in the supreme court to change that law.”

I know it is just an old TV show, but I couldn’t help but think, “Why wait for the supreme court to change the law? Just go to the legislature.” Oh yeah, that’s right, the legislative branch is scared to death of the judiciary.

Julia Louis-Dreyfus is correct, but only to a point. She, and other women, and apparently men pretending to be women, all have a “right” to abortion, and this “right” is indeed granted to them by the supreme court. It therefore makes perfect sense that since the supreme court granted this “right,” only the supreme court can alter or abolish this “right”. Problem is, where does the supreme court get this authority to grant rights and create law? Nowhere.

Myth: the supreme court is the final arbiter, they can create law, and only they can determine constitutionality

Fact: Opinions from the supreme court can be ignored, only congress can create, abolish, or alter laws, and all three government branches and citizens can determine constitutionality.

In the first session of the first congress, on June 17, 1789, James Madison stated:

But the great objection drawn from the source to which the last arguments lead us is, that the Legislature itself has no right to expound the Constitution; that whenever its meaning is doubtful, you must leave it to take its course, until the judiciary is called upon to declare its meaning… But I beg to know, upon what principle it can be contended, that any one department draws from the Constitution greater powers than another, in marking out the limits of the powers of the several departments? The Constitution is the charter of the people to the Government; it specifies certain great powers as absolutely granted, and marks out the departments to exercise them. If the Constitutional boundary of either be brought into question, I do not see that any one of these independent departments has more right than another to declare their sentiments on that point.

The very next day he added:

And have we not as good a right as any branch of the Government to declare our sense of the meaning of the Constitution?


Nothing has yet been offered to invalidate the doctrine, that the meaning of the Constitution may as well be ascertained by the legislative as by the judicial authority.

What does all that mean? Founding Father James Madison said that the legislative can determine constitutionality of laws, not just the judiciary. I’ve heard congressmen, and even presidents say regarding potentially new laws, “I’m not sure if this is constitutional. We’ll have to see what the supreme court says after we pass it.”

No! The supreme court are NOT high-priests of the law, although they are fine with everyone thinking that. Anyone can read The Constitution and understand it. You do NOT need to go through years and years of horse-pucky law school and sit on a judicial bench for several years. True, you may need to look up definitions in the 1828 edition of Webster’s dictionary, and you may need to dive into the notes taken at the constitutional convention, or the Federalist Papers. But this isn’t hard. And it definitely shouldn’t be difficult for members of congress.

Jefferson warned about the judiciary having sole authority of constitutional review, in an 1804 letter to Abigale Adams:

The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.

Sounds like the judiciary of today has become what Jefferson warned against.

In an 1819 letter to judge Spencer Roane, Jefferson wrote regarding the judiciary having sole authority to expound The Constitution:

…The Constitution, on this hypothesis, is a mere thing of wax in the hands of the Judiciary which they may twist and shape into any form they please.

In an 1820 letter to William Charles Jarvis, Jefferson wrote:

You seem… to consider the judges as the ultimate arbiters of all constitutional questions: 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 privileges of their corps.

In other words, judges are not infallible, they can be corrupted, just like you and I can, therefore, they should not be the final arbiter of constitutionality.

Jefferson went on to warn that the judiciary’s maxim is (left unchecked):

Boni Judicis Est Ampliare Jurisdictionem

This is latin for:

Good justice is broad jurisdiction

A judiciary, left unchecked and unaccountable, will always expand, broaden, or increase its jurisdiction. This is a natural occurrence of power, and therefore it must be constantly controlled, like a fire.

The supreme court has increased its jurisdiction, not through a law passed by the legislative, but as the result of citizen and legislative apathy.

Surely The Constitution somewhere gives the supreme court the power of judicial review and makes them the final word. Nope. Not one syllable.

Hamilton wrote in Federalist #81:

There is not a syllable in the plan [the Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution…

Believe it or not, the judiciary fully admits this lack of constitutional authority for them to expound on The Constitution. It’s written, in plain understandable english, on their own webpage:

The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself.  The Court established this doctrine in the case of Marbury v. Madison. [emphasis added]

Those are not my words, but the judiciary’s. They fully admit they do not get the authority of judicial review from The Constitution. By their own admission, the very “authority” they use to declare something unconstitutional is itself unconstitutional. Yet, they are militant about this “authority” and only cite their own.  This is what is taught in law schools.

All that the modern-day court had to do was to cite one of their own, and boom, the precise thing Jefferson warned about: the judiciary expanded their own jurisdiction.

Everything is now under the despotic eye of the judiciary and we must bow to their infinite and omnipotent wisdom. Well, that is the philosophy of those that have idolatry for the supreme court and who always run to the court’s  bosom to support their other forms of idolatry.

For those of us who do not practice the religion of progressivism, postmodernism, secularism, or abortion, what can we do? Well, demand that our legislatures utilize their enumerated powers. Limit the judiciary. Pass a law that says voluntary prayer is allowed in government schools and then add the phrase, “This law shall not be subject to judicial review.” The courts cannot touch it. Do it with other laws too. Pass a law that declares that the federal government defines life beginning at conception… so on and then “This shall not be subject to judicial review.” There will not be a thing the courts can do about it.

Here’s another little known fact about our judiciary, although I’ve mentioned it in many other previous writings: the courts have no power of enforcement. They rely on the aid of the executive for this.

Federalist #78:

The Executive not only dispenses the honors, but holds the sword of the community…

The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Therefore, if the executive disagrees with the court’s interpretation, or their opinion, the executive can disregard it by not having it enforced. Presidents have done this before, and the court was powerless to do anything about it.

As illustrated by the episode of Seinfeld I mentioned earlier, so many of us think that whatever the judiciary opines instantly becomes law. Not so. There is no constitutional provision that allows this. Since the only government body with constitutionally enumerated legislative powers is… (gasp) the legislative, it is up to the legislative on whether to adopt the courts’ opinion into law. They rarely do this however. Congress also treats these judicial bowel movements as law, because they are as apathetic and are as uneducated as the general populous. EIther that, or they are self-serving spineless cowards.

This is more on us though, because we choose uneducated fools, cowards, and we don’t hold our own reps to the enumerated powers delegated in our constitution. We need to do better.

Share Button

5 thoughts on “Judicial Myth: The Supreme Court Is The Final Arbiter, They can Create Law, And Only They Can Determine Constitutionality”

  1. Incredible…

    You are absolutely right. the Supreme Court has no constitutional power to declare anything as unconstitutional. That is amazing.

  2. Once again, your dead wrong. Get your fingers out of your nose and get back to watching Hannity

      1. Oh my hell

        Im not going to waste my time you are just wrong

        Where did you get your law degree? No law degree = no idea what you are talking about.

        1. Nate,
          Does it really matter from where I was educated? No matter what my response is, you are going to dismiss my points. I am more than willing to have a civil discussion with you. Can you please do the same? Please be kind enough to take a few minutes to explain where I have erred?

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.