By Bill Moyers and Bernard Weisberger
A version of this essay will appear in an upcoming issue of The Nation, focusing on the Supreme Court. It will be available on newsstands Sept. 20, 2012.
Why a special issue of The Nation devoted to the Supreme Court? Because with partisan gridlock paralyzing both the president and Congress, the Court has more than ever become “the decider” — the most powerful branch of government, and one at the center of a controversy whose outcome may shape the course of democracy for generations to come.
By a paradox both historical and constitutional, the political appointees on the Roberts Court will never have to answer for their decisions to voters like you and me. Nor to the president or Congress: once they are confirmed, the Supreme Court’s justices, like all federal judges, serve for life or “good behaviour.”
The Constitution’s framers meant to secure the Court against political pressure from the electorate and arbitrary dismissal of its members from on high by presidents dissatisfied with their decisions. As the third branch of the new national government — one whose powers were to be divided to block overreach by any one of them — the Court would be equal to the executive and legislative arms, even though the president appointed its members with the concurrence of the Senate.
Fourth Chief Justice of the U.S. Supreme Court John Marshall.
That changed dramatically when John Marshall became the fourth chief justice in 1801, shortly before Thomas Jefferson took office. The two brilliant men were bitter rivals, members of opposing parties. Marshall was a Federalist, Jefferson a Republican (no kin to the present GOP). So the supposedly neutral Court has been thrown since its infancy onto the partisan battleground, where it remains today.
In a landmark case in 1803, Marshall refused to apply a 1789 law giving Congress a power not strictly authorized in the Constitution and therefore “unconstitutional.” With that decision, the Court was no longer merely equal to the other two branches. It had become superior — the last word on how the Constitution should be interpreted — and its lifelong members would never risk their jobs, no matter how much they fell out of step with changing times and values.