Myth #1: The Supreme Court, and by extension, the other courts, have a constitutional right to declare a law unconstitutional.
Actually, under Art. III, the Supreme Court does not have that right. They are merely to judge the law, without will or force. When the founding fathers created the Constitution, they made the Judiciary branch a LITERAL third wheel of the government, with no power of their own. It is no accident that they listed the court’s responsibilities under Art. III.
So how did the courts get this power ? Marbury vs. Madison, that’s how. I won’t bore you the details about the case, considering that the people here know far more than me on judicial activism. Needless to say, the courts took for themselves the power to “interpret” the law. I will make clear the significance of this particular case later. So the question is, what power does the courts have to enforce a decision, on the other two branches. That leads right into…
Myth #2: The President, or Congress cannot enforce a law that they passed, since it has been declared unconstitutional.
Simply to put, under the Constitution, The President or Congress can just tell the Supreme Court to go pound sand. After all, the courts literally have no power over the other two branches. So, why do the two branches adhere to the Supreme Court’s rulings ? Because, quite simply, the Supreme Courts are used as scapegoats. Suppose a politician had a tough choice to make, one that could decide whether he gets elected or not. Why not pass it off to the Supreme Court ? After all, they are appointed for life, not elected every few years.
Also, in terms of public opinion, the Supreme Court ranks the highest, followed by the president, and finally at a distant third, Congress. In theory, The President, or Congress can enact a law and enforce, and the Supreme Court can’t do a (blankety-blank) thing. In practice however, it could carry severe political consequences. Like people voting you out office, or your rating falling faster than a meteor plummeting to Earth. That is why you don’t see Congress or the President crossing the Supreme Court.
Why am I telling you this ? Because the above scenario has never actually happened before. But I have a feeling that either this Congress or the TOTUS might be arrogant enough to do it, if the courts move against any of there crap they are currently shoving down our throat. And while we may yell that it is unconstitutional to roll over the courts, nowhere in the Constitution does it say that it isn’t. The Supreme Court only has as much power as the other two branches allow it to have.
The moral of this story, is that we need to take back the other two branches, and not to count on the courts; especially if the Democrats get a swelled head, and decide to tell the Supreme Court to go (blankety-blank) themselves. Basically, if they feel public opinion is on there backs, they may actually risk it.