Transcript: Thom Hartmann: The Big Picture: The Supreme Court has become a cancer on our Democracy. 13 July '11

In last night’s Daily Take - I said that I agree with Newt Gingrich when he said that the Supreme Court has to work under rules set by Congress; that Congress can limit the Court’s powers; and that the court has taken onto itself the power to both shut down legislation and create doctrine - like the ideas that corporations are persons and money is the same thing as speech.

Here’s Newt’s comment:

In the American system, if you read the Constitution correctly — this is why I wrote “A Nation Like No Other” — if you read the Federalist Papers correctly, the fact is the Congress can pass a law and can limit the Court’s jurisdiction. It’s written directly in the Constitution. The Federalist Papers, Alexander Hamilton promises, I think it’s Number 78, that the judiciary branch is the weakest of the three branches. There is no Supreme Court in the American Constitution. There’s the court which is the Supreme of the judicial branch, but it’s not supreme over the legislative and executive branch. We now have this entire national elite that wants us to believe that any five lawyers are a Constitutional convention. That is profoundly un-American and profoundly wrong.

I pointed out that the Founders never intended it to be this way - as you can read in Federalist 78 and Federalist 80 - for the Supreme Court to have jurisdiction over Congress and the President. Never intended it.

The Supreme Court was beyond their Constitutional power when they handed George W. Bush the victory in 2000.

They were beyond their Constitutional power every single time they struck down a law passed by Congress and signed by the President and - most importantly - every single time they created out of whole cloth new legal doctrines like "Separate but Equal" in Plessy v. Ferguson or "Corporations are people" with Citizen’s United.

If you want to see the whole thing, the complete Daily Take last night, complete with the quotes from Hamilton and Jefferson, it’s the July 12th, 2011 Daily Take on our YouTube page, and you can easily find it via

So - in responses to yesterday’s daily take about this, a number of people have posted messages over at and on youtube and other places asking a few questions about what I had to say.

The first is, if the Supreme Court can’t decide what is and isn’t Constitutional, then what is its purpose? What’s it really supposed to be doing?

The answer to that is laid out in the Constitution in plain black-and-white.

The Supreme Court is the first court in the nation that goes for cases involving disputes about treaties, ambassadors, quoting the constitution now - "controversies between two or more states, between a state and citizen of another state, between citizens of different states, and foreign states".

Read Article Three, section Two of the Constitution - it’s all there.

Second, the Supreme Court is the final appeals court when everything else has been exhausted for pretty much every other kind of legislation.

If two people have a lawsuit and it goes up through the courts it has to stop somewhere, and that somewhere is the Supreme Court. They and they alone can make the final decision about who wins and who loses in civil and criminal cases.

But they have to do it under the laws passed by Congress and signed by the President.

They have to do it the way Congress says they have to do it.

As the Constitution says -

The Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions, and under such regulations as Congress shall make.

Period. End of sentence. Not a word in there about what's known as the doctrine of "judicial review" - the power of the court to decide what is and isn't "constitutional".

Which raises a second question - who does decide the constitutionality of a law passed by Congress? President Thomas Jefferson was pretty clear about that, as were most of the founders. And they said that the court, and by the way, the court didn't start seriously deciding constitutionality until all these guys were dead.

But back in the day there was actually one case during Jefferson's lifetime where the court did this. Back in the day here's what Jefferson had to say -

The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves....When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity.

Their elective capacity?.

That’s a fancy presidential-founder way of saying that the people can toss out on their butts any member of congress or any president who behaves in a way that’s unconstitutional.

The ultimate remedy is with the people - it’s the ballot box.

If we don’t like the laws being passed, then we should elect new legislators and a new president.

It’s really pretty simple.

But without the Supreme Court, some say, we never would have had Brown versus Board in 1954 - ending apartheid in America - or Roe v. Wade, ending restrictions on abortion in 1973.

True, but Brown versus Board was mostly the Supreme Court reversing itself from its own 1886 Plessy versus Ferguson decision which established legal apartheid in the United States.

And if the Supreme Court hadn’t decided in Roe Versus Wade - remember, the Birth Control pill had just been invented and brought to market thirteen years earlier and the women’s movement in 1973 was in full bloom - if they hadn't done it in '73, then it would have been just a matter of a few years before Congress took care of it.

The fact of the matter is that the Supreme Court has never found eternal truths in the Constitution - they just reflect current popular view, and they usually do that with about a 20-year - a one generation - lag-time.

So let’s end the charade that we have nine unelected kings and queens in America who serve for life and can strike down laws the way it works in some Constitutional Monarchies.

We don’t have a monarchy here in the United States.

This Supreme Court - this Roberts Supreme court - has become a cancer on our democracy, slowly but steadily eating out all the rest of it.

Tell your members of Congress to wake up and read the Constitution.

That's The Big Picture.


lpeterson2's picture
lpeterson2 8 years 5 days ago

I'm sorry Thom, but Newt is not interpreting Federalist #78 correctly. He is taking out of context the comments Madison makes about the Court's power. Madison states that without 'permanency of office' AND 'judical review' (the power to declare acts of Congress void), those powers that place the Court on a more equal footing, the Court would become too weak and be completely powerless and subject to the influence of the other branches. Have you forgotten about the 'supremacy clause' that declares the Constitution the law of the land? Would you really leave it up to Congress to correct itself? That is just completely naive and gives Congress too much power to 'substitute its will for the will of the people'.

In addition, I believe that power of judicial review is embedded into the Constitution and does not relate to its 'jurisdiction'. The Constitution clearly gives the Court the power to interpret the law. For what other purpose does the power to interpret the law relate to than to view the Constitution in light of other laws or acts of Congress, the Executive and the states? Whether a case is being heard under the Court's appellate or original jurisdiction is inconsequential. In either jurisdiction the Court still has the power to interpret law. In order to change this, Congress would have to amend the Constitution requiring a 2/3 vote of Congress and survive the ratification process. I don't see that happening any time soon.

Kika's picture
Kika 7 years 25 weeks ago

Thom, I've read this book before: it is called Animal Farm!

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