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Supreme Damage: Rescuing Representative Government from Judicial Overreach



A critical review of 18 unconstitutional rulings by the Supreme Court that improperly made law, nullified rights, grew federal power over those properly belonging to the states, and forced social/moral changes on society that the people did not ask for. Suggestions for amendments to the Constitution to correct rulings and restore the balance of power among the branches of the federal government as devised by the Founders. Ample links to related stories and resources and suggestions for further reading are provided.


The outrageous overreach of the courts has long bothered me. But especially disturbing was the 2015 Supreme Court decision that invalidated a state law—that was within the state’s power to enact—providing that marriage was an institution for one man and one woman, finding it was no longer binding and that any two people had a right to marry, even if they were of the same sex. It was chilling to think that the people, as represented in Congress and by state legislators, are no longer in charge of their governments. Instead, over the decades, much power has been assumed by a handful of unelected lawyers in a black robe who are not politically accountable to the people. This revision of process is not what a representative republic is all about.

In this book, eighteen erroneously decided cases are described in thirteen chapters. The reader will find the background story, the arguments of both sides, where the Court erred, the consequences of the ruling, and suggested solutions. At the end of each chapter are suggestions for further reading and, where appropriate, action.

The Afterword briefly describes other poorly decided cases that are not covered in the main text. An appendix defines some terms commonly used in adjudication. For reference, the Constitution and its first fourteen amendments are presented in the last appendix.

Links to related web resources appear in context. The links are not essential for understanding the content but could add much depth. E-book readers should click anywhere in the URL. To return to the text, click on the tab for the book at the top of your reader. All the URLs have an ID, such as W1-AA. A roster of URLs with their ID is available at

This site is where print readers with an internet-connected device handy can easily link to the websites while reading. Search for the ID as shown in the book, then click on the URL to its right.

I defend new word creation if it is etymologically plausible. One in this tome is “malaffecting,” which is not in any dictionary but should be! Its meaning is obvious.

In this effort, I was aided by author and political maven Michael Isenberg (Full Asylum and The Thread of Reason (, whose comments made for valuable improvements in content and organization, and by author and activist Amy Contrada, who made substantial enhancements to the chapter on Lawrence v. Texas and Obergefell v. Hodges and by attorney-editor Liz Seif ( for a very constructive final review.


What are the Supreme Court’s powers?

“The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution.”

— Alexander Hamilton in Federalist No. 78


If only Hamilton had been proven right! Unfortunately, over the decades, particularly since the late nineteenth century, federal courts, including especially the Supreme Court, have taken on a role in making public policy to the degree that many believe the judiciary has become the most dangerous branch. Whole categories of life previously reserved for the legislative process at either the federal or state level have been reordered by Court rulings. With the stakes having so steeply risen, each new vacancy in the Supreme Court results in a knock-down, drag-out brawl over who will fill it. Thus,, the dubious ad hominem charges against Clarence Thomas (1991) and Brett Kavanaugh (2019) in their Senate confirmation hearings.

Judicial activism

The primary concern of those who believe that the Court has become a danger to representative government, the federal structure, and ordered liberty arises when the Court engages in what has come to be called “judicial activism,” which is manifested in nine varieties:

abusing precedent, contorting text, importing foreign law, exhibiting judicial dishonesty, interjecting judicial imperialism, applying “living constitutionalism,” nullifying rights, playing favorites, and playing legislator.

The three that are most at play in the cases in these chapters are living constitutionalism, playing legislator, and nullifying rights. Living constitutionalism is the view that judges can construe the Constitution to fit new needs and conditions that were not foreseen by the original drafters without regard to the text of the Constitution, the meaning of its words, or the intent of its authors. Much mischief has occurred because of this notion. Justice Breyer has been a keen proponent of this approach.

Sadly, there has not been an effective way to correct an errant Court, but in our journey, some solutions are suggested in the form of Constitutional amendments.

Some history

There is good reason to believe that the Framers of the Constitution did not see the Court as having a policy role. Madison’s August 15, 1787 notes on the Convention show that a proposal to submit all acts of Congress to both the Executive and the Supreme Court for review was rejected by the Convention.


In Federalist 78, Hamilton also allowed that the “interpretation of the laws is the proper and peculiar province of the courts. . . . It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.” That expression would seem to anticipate that the Court could at least comment that a law conflicted with the Constitution and perhaps overrule it. Indeed, critics of this meaning of “judicial review” were at a loss to explain what other mechanism there was to protect people from laws that violated the natural rights guaranteed in the Constitution.

If the power of the Court to overturn legislation was unclear in the early days of the republic, it was firmly established in Marbury v. Madison (1803). Not long after this decision, a common understanding developed that it fell to the Supreme Court to determine what the Constitution says. From there, it is held that the Court has the power to determine the limitations placed on the two other branches of the federal government as well as the states.

Having lost the 1800 election, John Adams hurried to make last-minute appointments of fellow Federalists to various offices. Not all of his writs were able to be served before Jefferson’s inauguration, including that for William Marbury as justice of the peace for the new District of Columbia. So Marbury filed a suit seeking to have the Supreme Court, rather than an inferior court, perform the task of issuing the writ, based on the 1789 Judiciary Act, which gave the Court original jurisdiction in situations not specified in the Constitution. The Court, while acceding that Marbury should have gotten his commission, correctly declined to issue the writ because its justices gave deference to the Constitution, the highest written law.

Chief Justice John Marshall’s decision affirmed the need for Constitutional review by the judiciary, but not judicial supremacy. That would be a coequal power of courts to judge acts of the other branches as to their conformance with the Constitution and to refuse to apply judicial concurrence to enable laws contradicting the Constitution.

But a full and nuanced reading of this decision could yield conclusions other than the doctrine of “judicial review” as practiced post-Marbury. An excellent analysis along these lines can be found in a 2004 paper, “The Irrepressible Myth of Marbury,” by Michael Stokes Paulsen, chairman at the University of St. Thomas School of Law (Minneapolis, Minnesota):


Those dangerous footnotes

Sometimes the damage that the Supreme Court does lies in the obiter dicta (Latin for “by the way”) commentary in a footnote to an opinion. These comments are not part of the formal ruling, but they can influence decisions in later cases.

The first serious case was United States v. Butler (1936), where in the body of the opinion were comments that pointed to a new expansive interpretation of taxing for the “general welfare” and separated what the federal government could spend for as enumerated in the Constitution. From then on, it was open season for new spending not related to one of the tasks and powers given to the federal government.

There soon followed the famous footnote four in United States v. Carolene Products (1938), which encouraged courts to assume that economic legislation was constitutional unless it conflicted with specific prohibitions in the Constitution or affected certain minorities. The language of footnote four launched a new role for the federal courts. That a law might interfere with a natural right, such as engaging in an activity to earn a living, was thereafter not so easily nixed.

And in Plyler v. Doe (1982), commentary in the footnotes by Justice William Brennan led to an acceptance of the idea that most anyone who happened to be born in the United States was automatically a citizen, regardless of parentage.

For further reading

Original Intent: The Courts, the Constitution, and Religion by David Barton; 1996, Wall Builders


The Supremacists: The Tyranny of Judges and How to Stop It by Phyllis Schlafly; 2004, Spence Publishing Company


Men in Black by Mark Levin; 2005, Regnery


The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom by Robert Levy & William Mellor; 2009, Cato Institute


Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government by Clark M. Neily; 2013, Encounter Books


Stolen Sovereignty: How to Stop Unelected Judges from

Transforming America by Daniel Horowitz; 2016, WND Books


The Most Dangerous Branch: Inside the Supreme Court’s Assault on the Constitution by David Kaplan; 2018, Crown Publishing (Random House)


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Independent investment adviser with an interest in good government and traditional American values, and the law. view profile

Published on October 01, 2020

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Genre: Political Science & Current Affairs