A Despotic Supreme Court? (Politics & Government)

Article excerpt

"Lincoln on Judicial Despotism" by Robert P George in First Things (Feb 2003), Institute on Religion and Public Life, 156 Fifth Ave Ste 400 New York, N.Y. 10010

Nearly everyone today accepts the idea that the Supreme Court has the final word on what the Constitution permits and forbids. But Abraham Lincoln, and before him, Thomas Jefferson, held a very different view: They feared that judicial supremacy meant judicial despotism. And their fear was well founded, argues George, a professor of jurisprudence at Princeton University.

In Marbury v. Madison (1803), which invalidated the Judiciary Act of 1789, the Supreme Court, according to most scholars, established the Court's power of judicial review over acts of Congress and the president. Jefferson condemned the ruling and later said that the claimed power would have the effect of "placing us under the despotism of an oligarchy."

The next time the Court declared an act of Congress unconstitutional was in 1857, in Dred Scott v. Sand ford. In a 7 to 2 decision, the Court ruled that slaves were personal property under the Constitution, so the (already repealed) Missouri Compromise, which outlawed slavery in federal territories, was unconstitutional. The Court not only sent Scott back into slavery but held that blacks could not be citizens. Most scholars today think that the Dred Scott case further polarized the country and made the Civil War "almost inevitable," George says.

Lincoln denounced the ruling repeatedly in his 1858 senatorial campaign, and also in his presidential campaign two years later. …