🗃️ Y'all I appreciate the Lincoln quote but we have to stop telling the story this way. Lincoln was not just reacting to a heinous decision, he was telling a vital truth about how people of the era understood constitutionalism. Near universal acceptance of judicial supremacy is a 20th c phenomenon 1/
New in PN: Lincoln warned that if government policy "upon vital questions affecting the whole people… is to be irrevocably fixed by decisions of SCOTUS… the people will have ceased to be their own rulers.”
It's like Abe was addressing the Roberts Court.
🗃️ The Marbury decision is about judicial review (the power to review constitutional cases) not judicial supremacy (ultimate authority over the Constitution). Even if Marshall declared judicial supremacy in that case (itself a dubious claim), he held a distinct minority view in American society 2/
🗃️ The 19th c Supreme Court held a tiny fraction of the authority it does today. The Dred Scott case, while horrifying, was ignored in many of the northern states and later by the Republican Congress. Can you imagine this happening in reaction to Dobbs? It's an entirely different universe today. 3/
🗃️ I'm all in favor of Lincoln's words inspiring us to address how unbelievably powerful the Supreme Court has become at the expense of our democratic institutions. But let's try to get the history right! 4/4
The important thing about the history is that Lincoln was not saying anything radical. The Dred Scott decision was egregious not just for its content, but for the huge power grab the Court made. That unconstitutional power grab has become normalized.
Can you imagine it happening in reaction to Brown or any of the 4th Amendment penumbra cases? This is all very disorienting after growing up in the years after the Warren Court where the Court’s finality seemed to protect against the political branches.
That did happen. Southern states ignored brown and didn't integrate. The court ruled again in brown 2 that they had two, but didn't provide a deadline. So states continued resisting.
It took efforts by the other branches as well to make things change. A lot of those were also successfully resisted
I agree with that. I was trying to highlight that the court has always had contentious power. It can influence policy, but other branches and areas can push back when they try.
It's the difference in perspective of the role of SCOTUS considered less than 100 years after the Constitution's publication vs 237 years after. Since it is so hard to update that document, it is only going to get worse.
The ultimate authority is, and always should be, the people.
We make the laws. We decide what the Constitution means. We determine what is legitimate and illegitimate.
We choose to cede that authority to SCOTUS and remain passive when it's abused, but it's still ours to begin with.
Rare for me to say Andrew Jackson was right (and he was not right about the case he was mad about) but his whole “the Court has made its ruling now let them enforce it” vibe is something I think about often
Fortunately, the US Constitution provides a remedy: amendment. And it worked then with the Second Founding Amendments 13, 14, 15. But it failed for ERA, and there is no consensus to use it in our present day.
