Why Supreme Courts Don’t Protect You, Pt. 1: History

In any liberal constitution, in times of crisis, people appeal to an authority, to a steadfast rock in the surf of politics: to a supreme court or constitutional court. However, as any lawyer will tell you, or the experience of the last years, these appeals usually achieve little. The court will rarely side with you against the state, especially in matters of political significance. Why? Because a supreme court’s purpose is not to protect your inalienable rights but to create a façade of legitimacy for the current system. To the contrary, any supreme court really trying to achieve something must fail. In short, politics and justice rarely match.

We will talk about the mechanism behind the idea of courts deciding on politics and why this concept is at least misguided, or even deceptive on purpose. We will see that supreme courts aren’t suited to make political decisions and lack the ability to enforce such decisions against the state.

This video is part 1 of a two-part series: Here we will talk about the history of supreme courts, in part 2 about the aforementioned folly.

I. Gala Placida and the Law of Citations

To understand the concept of a “supreme court”, we have to look at the history of these courts. We are in the final decades of the Western Roman Empire. In October of 425 AD, the six year old Valentinian became emperor Valentinian III. Since the young boy could not rule by himself, his mother Galla Placida was acting in his name. Galla was a woman of many faculties and an “interesting” biography, to say the least.

The Romans had developed a sophisticated legal system, which is the base for western jurisprudence today. Roman lawyers and judges were highly trained professionals. However, Valentinian III. and Galla faced the collapse of the Western Roman Empire, that is also of its legal system. The trained lawyers required were lacking, and those replacing them had often little knowledge of the law while corruption was prevalent. To fix this, they promulgated a decree in 426 AD which is outrageous to scholars of Roman law, as well as learned lawyers, up to this day: The so called “Law of Citations”.

Applying law to a specific case requires the interpretation of the applicable laws and statutes. Single words or sentences like “the right to bear arms shall not be infringed” or “political refugee” or “peaceful protest” quickly become decisive. Like today, when in doubt about the interpretation of applicable law, Roman lawyers would resort to a vast collection of commentary by revered scholars or precedents. More often than not, lawyers and judges will twist the words of the law well beyond the original intent of those who have put the law in place. That’s the issue that Valentinian III. and Galla had to deal with: corrupt or inept judges applied the law wrongly, against the original intent and the very legal concepts developed by Roman legal scholars over the last centuries. The solution: Any interpretation should be based on five outstanding Roman scholars who had commented on the Roman law centuries ago. When their opinions differed, the opinion which the most scholars had opted for was decisive. Can you imagine such a legal travesty! Not the true argument, the just argument, the good argument was to prevail, but the argument that the legal mainstream had voted for.

Did the Law of Citations matter? Barely. The Western Roman Empire collapsed soon after, and the European legal system degraded into a mess of tribal precepts and maimed Roman law. The East, however, continued to perfect the Roman law, most notably the works of emperor Justinian in the early 6th century, whose Code of Justinian is the epitome of Roman law.

II. The King’s Law

Fast forward a thousand years, and the kings and nobles of the late medieval, early modern Europe faced a new threat: Bad lawyers. The profession of law, very much to the delight of many, had almost died out after the fall of Rome. Law was only practiced by clerics and monks, since the church had by far the most advanced legal system which had incorporated many aspects of ancient Roman law. Besides those, few temporal professionals at the nascent universities or large trade hubs had deeper knowledge of the local law.

Before the reemergence of lawyers, any legal decisions, be it on a civil dispute or criminal punishment, was made by local nobles or juries or assemblies and their likes. Only the church had something like a modern court system in place. To long time viewers of this channel, this is hardly surprising but very typical to a feudal society. However, when modern nation-states formed and feudalism died, law was not a very local thing anymore but something that the increasingly absolutist rulers as head of state decided on. They now found themselves in the same situation as the Roman emperors: The emerging system of national courts, consisting of local remnants of the feudal ages and appointed judges who often lacked proper education but made up for it with high levels of corruption, twisted the intent of the law as much as their Roman predecessors. These changes also created the demand for trained professionals who could interpret law new and old, that is, lawyers.

These rulers did not choose a revival of the much hated Law of Citations but, as had the Roman emperors when times where better and the barbarians far away, allowed their denizens to petition the ruler himself to address grievances and unjust decisions by lower courts. Originally, rulers would decide these cases on their own, aided by trained lawyers. Law at these times was a mix of traditional legal customs and precepts and reintroduced Roman law. The absolutist rulers, however, assumed that they were not bound by the law of the land; rather, like the Roman Emperors of the antiquity, they claimed to be able to introduce new law and to change old law. This could take two forms: Creating statutes and laws – and deciding on cases contrary to the old law, thus creating new precedents.

Let’s look at the Kingdom of England for a very defined example of this. The law of the land in the kingdom had been the so-called common law since medieval times, which was basically a collection of tribal law mixed with binding precedents and some Roman law introduced by the church. The common law courts were known as corrupt and often applying the law unjust, that is, without consideration of the specifics of the case. Thus, people petitioned the King of England, that is in practice the Lord Chancellor of England, for relieve. The Lord Chancellor and his clerks would consult with the King and override decisions by common law courts that were deemed to be unjust, invoking the authority of the king. These decisions were known as “law of equity”. The procedure became more and more formalized and trained judicial staff was brought in, leading to the creation of the High Court of Chancery, where trained professionals handled the law of equity without consulting the king first. Also, the infamous Star Chamber was established: A criminal court which originally should handle cases against powerful perpetrators whom common law courts didn’t dare to touch, but soon became a tool of oppression with secretive hearings.

III. Supremacy and Sovereignty

I know that I have talked a lot about historical courts by now, but were these courts of the early modernity supreme courts? Yes and no. Theses courts already were supreme courts insofar as they usually would make the final decision in a case and could overrule decisions by lower courts. They were indeed the top of a kingdom’s or nation’s legal system, so called high courts. However, the high courts were not supreme. The final decision in all matters still laid with the ruler or, by now, absolutist monarch. Please stay with me on this, because this is of utmost importance for the whole issues of supreme courts: Supremacy or sovereignty within a state is defined by the uncontested right to make the final decision on a given subject-matter. The high courts mentioned before exercised this right in legal matters for their sovereign, the absolutist monarch, who still had the real power to make final decisions and could and would overrule his high court if necessary.

Obviously, absolutism could lead to monarchs abusing their power, especially when faced with domestic opponents. Indeed, the aforementioned Star Chamber was an instrument of the English monarchs against dissenters and far away from any fair trial. Many opposed the undivided power of the absolutist monarch, and came up with the presumably obvious solution: The separation of powers, that is, separating the absolutist monarch’s power into legislative, judicial and executive branch. The legislative branch ought to create the law, the judicial branch to apply the law when in dispute, and the executive branch to do all the dirty day-to-day work that the law requires. When any official – or the king, who is usually put as head of the executive branch – does something unjust, that is, against the law, the other branches ought to step in. Sounds great, doesn’t it? Most states today indeed are constructed this way, or at least claim to have separation of powers, with a distinct legislative body, administration and judiciary.

However, this system doesn’t work. It offers some protection for citizens in matters that aren’t political and where a single official is treating people unjust, like, let’s say, a police officer beating up a guy at a peaceful protest. But what happens when a larger, political dispute arises between the branches? For example, when the legislature promulgates a law that the other branches deem unjust? Or when the executive just dissolves the legislative body which is usually some kind of parliament? Or when the courts apply the law created by the legislative body in a way that obviously contradicts its original intent? These disputes don’t have to be caused by some branch acting in bad faith. Sometimes, especially when things run hot in times of crisis, the opinions on the measures to be taken might differ strongly. What happens when the executive violates fundamental human rights, which were formulated at the same time as the separation of powers, to combat some presumably major threat? We all were and still are living through such times.

Let’s not forget, despite the manifold abuses that were occurring in absolutism, people wanted absolutist rulers. I don’t want to go into details here – If you want to know more, please watch my video about the birth of the state. It’s sufficient to say that feudalism was an extreme form of separation of powers, albeit not vertically as today but horizontally with a bunch of small nobles and other powerful individuals and groups, where nobody had sufficient power to force the mass of the others. This system worked quite well and prevented some abuse, however, totally exploded when religious and economic rifts appeared, exactly because nobody was able to make a final decision and enforce it against dissenters. Instead, all the small powers went after each other’s throats. In times of civil war and extreme violence, people long for somebody who decides on the matter in dispute once and for all and creates peace. Indeed, only the comparatively peaceful times that the absolutist rulers had created allowed for people discussing utopian ideas like democracy.

Despite their shortcomings, the progressive ideas of separation of powers and democracy were spreading like wildfire and people were willing to fight bloody civil wars against their absolutist rulers. One of these wars should give birth to the first supreme court, an idea that was totally alien to most people at the time, especially trained lawyers.

IV. Give me Liberty or Give me Death

Art. 3 of the United States Constitution establishes the Supreme Court of the United States of America. When you look at the provisions, the US Supreme Court is granted judiciary in a vast array of subject-matters, however, it is not explicitly granted the right to strike down any legislation of the United States Congress, that is the legislative branch, as unconstitutional. This so-called instrument of judicial review was established with the decision on the case Marbury v. Madison in 1803. The Supreme Court basically declared itself to be competent to strike down unconstitutional laws and is doing so ever since.

With this single decision, the US Supreme Court transcended from being just a mere court of final instance, a high court, which could be found in any European nation at this time, to be a real Supreme Court, that is a court which has the capacity to make the final decision against the other branches of government. Just to be crystal clear here: Congress could pass any law but the Supreme Court can strike it down and there is almost nothing that Congress can do about it. Subsequently, also the executive branch, that is the President of the United States, is bound to the law as it is interpreted by the Supreme Court, and thus too has almost no remedies against any decision by the court. This development was possible because the United States are based on a constitution, that is a fundamental law that is above all branches of government; the European monarchies of these time lacked exactly such a kind of fundamental law, the source of all law was the absolutist ruler with only God above him.

The high courts of Europe were bound to the absolutist monarch’s law and thus to the will of the monarchs as their sovereigns. The monarch tasked his high court to act on his behalf, thus it would decide civil and criminal matters and would offer relief to denizens who were mistreated by lower officials, which was obviously against the monarch’s will. However, it would never strike down any law made by the monarch or offer relief against any acts of the monarch himself. Sure, the court could twist the monarch’s law and interpret it in a way that contravenes the monarch’s will, but that goes only so far. There was no constitution setting a basic set of rules that they could invoke against their sovereign. The sovereign monarch could literally kill his own denizens and there was nothing that anybody could do about it besides a technically illegal revolution.

Now, could US Supreme Court Justices go and kill other people without punishment, because they might declare their acts legal and protected by the constitution, thus striking down any measure taken against them? Well, yes. Judge Dredd is no joke.

Thank you for sticking with me this far. In the next video, we will talk about why no supreme court uses this unlimited power, and why supreme courts indeed turn out to be weak and are all but convenient tools for rulers.