Making the Supreme Court Safe for Democracy


This next conversation is with Joshua Hawley, a former clerk to Chief Justice John G. Roberts, Jr., and an associate professor of law at the University of Missouri, about the arc of power exercised by the Supreme Court since the passage of the 14th Amendment. In one sense, we understand directly what the Antifederalist Brutus once opined about its potentially unlimited powers. The Court, Brutus informed, would be the most dangerous branch because its judges “are independent of the people, of the legislature, and of every power under heaven.” Of course, criticisms of the Court’s activism are now part of our political discourse. Indeed, how could they not be given the Court’s performance in any number of decisions?

But where does a revival of a limited judiciary begin? Less noted amidst talk of judicial methodology and interpretation that fills our discourse on constraining the judiciary is that our written Constitution is rooted in the principle of self-government and is, ultimately, the people’s document to be interpreted by their voices and practices. Its political structural principles of federalism and separation of powers seem to commend a competitive politics that is largely free of substantive judicial intervention. So, how to get there from here? For that, you will need to listen to Hawley discuss several ways a more targeted focus on self-government might challenge the Court’s self-understanding of its expansive powers.

Joshua Hawley

Joshua D. Hawley is an Associate Professor of Law at the University of Missouri law school. He is a former clerk to Chief Justice John G. Roberts, Jr., and the author of Theodore Roosevelt: Preacher of Righteousness (Yale Press, 2008).

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  1. says

    I listened to the Liberty Law Talk by “Joshua Hawley, a former clerk to Chief Justice John G. Roberts, Jr., and an associate professor of law at the University of Missouri, about the arc of power exercised by the Supreme Court since the passage of the 14th”.
    I agree, law and politics has been totally moved into the federal courts — where — only law is the Constitutional role of the S.C., not the political issues of the nation. Political issues belong in our federalism structure. The political issues of the nation is the policing power traditionally empowered by “The right of states to make laws governing safety, health, welfare, and morals (is) derived from the Tenth Amendment, which states, ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people. State legislatures exercise their police power by enacting statutes, and they also delegate much of their police power to counties, cities, towns, villages, and large boroughs within the state‘.”
    The Drafters of the Bill of Rights were very positive as to how the amendments were to be applied to the Constitution — through the people and State ratification; not by a future federal Supreme Court’s usurpation of the Amendment process — by “incorporation” of the First Amendment into the Fourteenth Amendment.
    My larger problem regarding the federal courts is that Congress has not proceeded with a hearing investigation of the Supreme Court’s usurpation of the First Amendment Clause “incorporated” into the Fourteenth Amendment of the Constitution .
    When the liberal and conservative justices work their philosophical, ideological, judgments against the majority — rather then “(Due) process of law” — we are in deep trouble.
    Joshua Hawley reminds us: “The Court, Brutus informs, would be the most dangerous branch because ‘its justices are independent of the people, of the legislature, and every power under heaven’.”
    Article 3, Section 1. “…The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”
    In Article 3., of any section, there is no mention of a of an enumerated statement of a life-time tenure respecting “shall hold their offices during good behaviour” or “their continuance in office”, which leads to the Congress. The specifics of the Supreme Court were left up to Congress, and Congress acted in its first session by passing the Judiciary Act of 1789. “The Judiciary Act (1801): Created 16 circuit court judges, granted life tenure.” A Congressional act — of ‘grant’. A grant that can also being taken away by Article 3’s, alternative, bad behaviour. When I speak of usurpation of the Constitution by the Supreme Court — I have no alternative but to apply that as — not only bad judgment — also, bad behaviour, which I will discuss in a future ‘comment’.

  2. says

    John E. Jenkins is the author of The Tribute, Published by Xlibris, May 2013
    “An insightful and well-researched story! A dramatic courtroom setting brings the battle for the freedom of religion and prayer vividly to life. The author shines a bright light on the Supreme Court’s erroneous interpretation of the 14th Amendment and Thomas Jefferson’s writings, and how the high court’s decisions affect our most crucial freedoms, our daily lives, and the education of our children.”

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