Marbury v Madison. Every school child knows this decision. They have no clue what case law is or why it matters – unless it’s some weird version they got from a half read Wiki article – but they know Marbury v. Madison. Well, they know the name and the effect – don’t expect that they know what the case was about.

Which is true for us older folks as well. If you didn’t study it in college, you were never taught the particulars of the case, what the issue was – nah, we just need to know what Marshall decided. Okay, technically, what Chief Justice Marshall wrote in the opinion of the Court.

Which is again, what every school kid knows – the principle of Judicial Review – that the Supreme Court is the final arbiter of constitutional matters. This power comes from – well, no where, really. It’s not in the Constitution – and the Founding Fathers don’t seem to have taken up the issue in the Continental Congress’. Evidently, it didn’t occur to anyone that people might not be able to read the constitution for themselves and figure it out.

Which is completely unfair – truth is, people of good will and intelligence can look at the same document and come away with differing opinions about it. This isn’t an excuse for the mumbo jumbo about words not having real meaning or the Constitution being a ‘living document’ (seems like they should have made a mummy movie about that by now). People will come away with the same basic understanding – so clearly words have meaning. But occasionally, they will come away with slightly different interpretations of those words. The Framers were all well aware of this.

However, 200 years of muddled and sometimes overtly contradictory case law is the result. Even more muddled and blatantly insane regulations along with thousands upon thousands of pages of Federal law that complicate the mess even further – well, obviously, we need some way of house keeping!

Judicial review was the Court’s answer, long before the law books filled libraries. Now, specifically, the Court had the high minded goal of protecting the rights of the People and the various Branches from government doing things the Constitution prohibits. The idea was that the Court was isolated from politics in a way the other two branches weren’t. But it also had a housekeeping effect – any law that didn’t pass constitutional muster is automatically invalidated. And being fair, having the Court’s opinion does help sort out the letter from the spirit from the ridiculousness of the law – there have been positives from judicial review.

But who watches the watchers? The only remedy is constitutional amendment – which just means that if the Court goofs and doesn’t fix it itself, the only way to fix the problem is to amend the Constitution. And the Court does goof – a lot.

To be fair, the Court has reversed itself – but let’s look at one of its most egregious decisions: Plessy v Ferguson. This created the absolute rubbish of ‘separate but equal’ which is nowhere in the Constitution, not even hinted at in the Constitution and no sane person can read the Constitution and think that ‘separate but equal’ was EVER intended. Plessy was decided in 1896. It was overturned by the US Supreme Court in Brown v Board of Education of Topeka Kansas in 1954.

1954 – 1896 = 58

Fifty-eight YEARS where this nonsense was the law of the land – and so called ‘settled law’ (saving the rant on ‘settled law’ for another day)! This one decision affected EVERY part of the US, not just the South. The South was the most blatant – but there were real and legal barriers keeping black people from buying homes and property wherever they wished, or sending their children to the schools they choose, and this all across the nation.

Not ‘quasi’ legal – legal. Because the Court didn’t have the political backbone to tell the world truthfully that the US Constitution did not permit governments to create or allow legal barriers based on immutable characteristics like skin color, three generations of black folks were disadvantaged and discriminated against by their own government.

Plessy is egregious, but not unique. The whole idea of the Constitution as a living document is to allow the Court to play similar stupid games with what is written in the document that IS the supreme law of this great land. Casey famously bypasses the Court’s own limitations in Roe to allow virtually anything to constitute a health exemption. Congress begins with prayer but schools can’t. The Civil Rights Act supersedes the First Amendment. And on and on, with ever sillier and more irrational case law being formed.

Because the Court IS a political animal – it always has been. It’s part of a political system – government. The expectation that it is somehow immune to the political winds is silly. The idea that the Court is more objective is just false. The Court’s power rests in its prestige – in other words, what people think about the Court. That’s not a small amount of power – but it means that if the Court ticks everyone off, it loses power.

Or if it ticks off the most vocal groups. The other branches. All the people the Justices see at cocktail parties…

Prestige is very, very powerful – but it’s also a balancing game. That doesn’t make the Court apolitical – it makes the Court VERY political while trying desperately to act like its not.

So, what do we do about it? There’s some merit to judicial review. Certainly the Court has the best vantage point to explain the law and how it relates to the Constitution. But the American system of government is set up to balance powers against each other – and only having the amendment process to counterbalance judicial review is seriously NOT counterbalancing. Judicial review is slow; constitutional amendment is glacial. That’s not going to keep the little toy clown on the wire.

First: amend the Constitution to require that ALL three branches agree to a judicial review opinion – with the President and Congress doing so twice. The Court issues the opinion: That president and the current Congress are given thirty days to agree, disagree or refuse to consider. Then, when the next term begins (presidential terms are four years apart – so it can be the same president or a new one), that president and Congress are given six months to agree, disagree or refuse to consider.

The first time: If they agree, the ruling stands as law until the next term. If they disagree, the ruling is stayed until the next term. If they refuse to consider, the ruling stands as law until the next term. (We can skip this if a term has already expired.)

The real decision is made by the new Congress and the president in a next term. If they agree, the ruling stands as law, period. If they disagree, the ruling is rejected and does not become law. If they refuse to consider, the ruling goes back to the Court which will have six months to reconsider if it so chooses or can just drop the decision and the ruling does not become law. A reconsidered ruling will go back to the current Congress and President for them to either agree or disagree. Refusal to consider at this point allows the ruling to stand.

Why so complicated? First off, because judicial review can be fast relative to election cycles. It’s possible for a case to be reviewed within months – even though this is rare. So to allow for those rare cases that require fast review, allow the current president and Congress to review the ruling.

But we don’t want the same Congress that gave us an unconstitutional law to rule on that law’s constitutionality – at least not permanently. So to make the final decision, in the very next term the president and Congress review the ruling again. The president might or might not be the same person, but the Congress will definitely be different. How much different will be determined by the voters – sadly, government doesn’t run well on autopilot.

To restart the process would require a different ruling by the Court. It can affirm an existing judicial review ruling but if it overturns one, the process starts again.

To keep the whole thing from blowing up into the Court having to revisit every decision in the last 245 years, the amendment should specify that old decisions only need the new review if they are reaffirmed or overturned by the Court after the amendment is ratified.

Judicial review itself needs a review – having to wait decades for the Court to clean up its mess is not working and never has.