Sorry, Kennedy, Court's Role is not to Check the Executive

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

Libertarian Kennedy, a.k.a. Lisa Montgomery, went from Rock DJ and MTV VJ to Fox News Contributor thanks to her libertarian views on politics.  Currently, she spends a lot of time on a program on Fox News called “Outnumbered,” which normally pits four women and one man against each other on the news of the day.

This morning, Kennedy said something that proved to me she has no idea what the U.S. Constitution says.

While reporting on the confirmation of Neil Gorsuch to the U.S. Supreme Court, she said that it is the court’s job to “check the executive.”

No, that is not the job of the judiciary.

In 1803′s Marbury v. Madison case, Chief Justice Marshall unlawfully established that the Supreme Court could invalidate laws which the judges deem violates the Constitution.  The authority was never granted by the States who are the authors of the document, and the ratifiers of any changes proposed (as per the amendment process laid out in Article V. of the U.S. Constitution).  The courts took the power of invalidating laws they don’t like for themselves.  The term for the concept is judicial review.  From that point in history, the courts began a long and careful process of building upon that power, and creating its own field of influence within the Federal Government. The power has, since then, expanded to the court’s power to invalidate anything it feels is outside constitutional allowances.  Then, as that was going on, the courts also developed the idea that it is up to them to interpret the Constitution, and that constitutional definitions are based on precedent and case law, rather than the original language in the document.  This has allowed the courts to change the Constitution at their own whim.

Marbury v. Madison ruled in favor of Plaintiff William Marbury.  The case was concerning the appointment of midnight judges that went on during the waning days of the John Adams presidency as the Federalist Party desperately attempted to pack the courts with big government statists during the time between the 1800 election, and the inauguration of Thomas Jefferson.  The Federalist Party had lost the White House, and both Houses of Congress in the election, and as Jefferson put it, “The principal [leaders of the political opposition] have retreated into the judiciary as a stronghold, the tenure of which renders it difficult to dislodge them.”

All of the commissions for those judicial positions had not been delivered by inauguration day.  When Jefferson took office, he instructed his Secretary of State, James Madison, to not deliver the remaining commissions, calling them unlawful.  Marbury sued, since he was one of those appointed judges that would not receive his commission, and in the end he won the case.  However, Chief Justice John Marshall (who ironically had been the Secretary of State under John Adams, who didn’t get all of the commissions delivered) recognized that the “executive authority” belonged to the President, and the courts had no power to force the President to deliver the commission.  In short, the court told Marbury that he had won, but they did not have the enforcement power to force the President to deliver the commission.

Recognition that the judiciary has no enforcement power was also visited by President Andrew Jackson, after losing in Worcester v. Georgia, (1832), when he responded: “John Marshall has made his decision; now let him enforce it!”

The courts do not have the authority of “enforcement.”  The concept of “Separation of Powers,” which is established in the first sentence of each of the first three Articles of the U.S. Constitution, confines the powers of each branch to the branch in which those authorities are granted, and to no other part of government.