In the latest “Making America” video for PragerU, Associate Professor of Law at the University of Notre Dame Sherif Girgis explains what the Framers of the Constitution intended regarding the purposes and power of the Supreme Court.
“Of the three branches of government—the legislative (the House of Representatives and the Senate), the executive (the president), and the judicial (the Supreme Court and the lower federal courts)—which is the most powerful?” the video explains. “Today, most people would probably say… the judicial. It’s the Supreme Court that has the final say over every controversial issue.”
Today’s Supreme Court has seemingly become the final word on the major legal issues of our time. From redefining marriage to overturning Roe v. Wade in June, the decisions of today’s nine justices wield tremendous influence. Girgis reveals that this perspective is much different from how the Framers originally saw the judicial branch’s role.
The video takes a look at Article II, Section 1 of the Constitution says, “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall… receive for their services, a compensation, which shall not be diminished[…].” The lifetime tenure of justices has become a concern for lawmakers in our day who see the role more like the work of the executive and legislative branches.
Progressive activists have called to expand the number of justices on the Supreme Court. Others have argued for term limits to remove the lifetime nature of the role.
Alexander Hamilton believed the judiciary was “beyond comparison the weakest of the three” branches. The Founding Father saw the executive branch as the real power since it controlled the military. The legislative branch controlled the making and changing of laws. Hamilton saw the judiciary as the weakest branch, lacking authority over the military or lawmaking.
Girgis also explains that the Constitution doesn’t even state how many justices there should be. The number was determined by the first Congress of 1789. They selected six justices, though the number was later changed to address any potential tie votes.
The Constitution also addresses the limited role of the judicial branch in Section 2 of Article III. Federal courts are specifically to settle disputes about the rights of the parties before them. The courts were not designed to resolve policy debates or serve as a form of judicial activism. The making and changing of laws were designed as a role for legislators elected by the people.
The Framers of the Constitution intended the legislative and executive branches to hold the power to interpret the law according to their roles. For example, presidents have vetoed bills they considered unconstitutional. President Andrew Jackson did this when he refused to recharter the national bank in 1832. He believed the Constitution did not give Congress the authority to establish a national bank.
Both the president and Congress have usually followed the Supreme Court’s interpretation of the Constitution, but there have been exceptions. Girgis explains that President Abraham Lincoln rejected the Supreme Court’s holding in Dred Scott v. Sandford regarding U.S. citizenship for people of African descent in the U.S.
Today, many view the Supreme Court as the final say with superior power to interpret the Constitution. No wonder it seems like the most powerful branch. Girgis explains that the Framers outlined the power of the courts in Article III much differently, adding that they would have been surprised at today’s view of their role, and likely concerned.