The following excerpt was written by Convention of States Oklahoma District Captain Ryan Walters and originally published on the Daily Caller. It does an excellent job explaining how we've allowed the Court to expand far beyond its original scope.
On January 2, 1801, John Jay wrote a letter to President John Adams explaining why he would not accept the commission to be chief justice of the Supreme Court. Jay had been the country’s first Supreme Court Chief Justice, but in his letter, he explains to President Adams that the Supreme Court did not have the “energy, weight, and dignity” to be impactful on public policy.
Jay quickly understood that while the position of justice of the Supreme Court is prestigious, it is inconsequential in terms of public policy. While the media and the nation are captivated by the potential impact of a Supreme Court Justice Kavanaugh, it was never intended for a Supreme Court justice to have a significant impact on national policy.
Article 3 Powers
Article 3 Section 2 of the Constitution explains the scope of the judicial powers of the Supreme Court as hearing only certain cases and controversies. This distinction renders the court a very minor role in terms of policy decisions.
First, an actual case must be brought to the court. The court does not deal with hypothetical or theoretical questions. From the very outset, this explains the relative impotence of the court in relation to the other branches.
The courts do not possess an automatic or clear mechanism to make any decision on actions of the other branches. The only time the court can decide a case involving the action of another branch is if a controversy occurs. The court itself reiterated this point in 1911 when in Muskrat v United States the court refused to allow a case to be heard because even though the United States was named as a defendant, the litigants didn’t present an actual controversy between adverse parties.
As Daniel Horowitz from Conservative Review recently pointed out, if the courts were meant to have broad power in regards to legislation, then the founders would have created an avenue for the courts to involve themselves directly rather than wait for a controversy to occur.
A modern view theorizes the founders intended for the courts to have a critical veto vote on legislation, yet the court may have to wait years or even decades to exercise such a power on a dangerous piece of legislation. This description of the courts is illogical and clearly not the role our founders outlined for the judicial branch.
Neither Force Nor Will
We have further explanation of the limited power of the judiciary in Alexander Hamilton’s description in Federalist 78. He states that the judiciary is “beyond comparison the weakest of the three departments of power.” He also makes the point that the courts “have neither FORCE nor WILL, but merely judgment.”
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There's only one way to put the Supreme Court back in its constitutional box. The President can't do it, Congress is spineless, and the Court certainly isn't going to limit itself. The states must step in by calling the first-ever Article V Convention of States.
