Title: Supreme Power (7 Pivotal Supreme Court Decisions That Had a Major Impact on America)
Author: Ted Stewart
Publisher: Shadow Mountain
No. of Pages: 225
ISBN 13: 978-1-62972-340-2
Reviewed by Gary McCary for the Association for Mormon Letters
There are nine of them. They wear black robes, which gives them an aura of solemnity and authority. They work in one building in Washington, D.C., an impressive building at that. The United States is shaped, molded, and fashioned by the decisions they make (often by the decisions of just five of the nine members). And they are unelected. We are, of course, referring to the Supreme Court of the United States of America, the judicial branch of government.
And Ted Stewart is worried. Mr. Stewart is a Senior U.S. District Judge for the District of Utah, having been appointed in 1999 by President Bill Clinton. Mr. Stewart is worried that the Supreme Court has the final say in almost all decisions that matter in our country, and at that only FIVE people have that power, and make no mistake, it is that power that bothers Mr. Stewart throughout this fine book. The book is titled “Supreme Power” for a good reason. Whether one agrees with Judge Stewart is not his concern as an author. What his book is most concerned with is that the public understand how we got to this place where so much power is invested in so few people.
Mr. Stewart endeavors to make his points by an examination of seven cases that made their way to the highest court in the land and what the Court, often in a 5-4 split, decided. He begins with Marbury v. Madison (1803). Who gets to decide when and whether an act is in violation of the Constitution? This was the case in which the Court established itself as the final word on what is–or is not–constitutional.
This should not be so disturbing, except that there are two different philosophies of how to interpret the Constitution. The “Originalist” philosophy holds that the law serves the community best when it is as predictable and stable as possible, based on a consistent point of reference. An Originalist believes that the Constitution should be immune, as far as possible, to the shifting tides of public opinion. The second type of philosophy is propounded by those whom Stewart calls “Living Constitutionalists.” This philosophy holds that the Constitution is a LIVING document, and that its principles should reflect present-day values and should adapt to present-day challenges and needs. Since Supreme Court justices are appointed by the President, it follows that there will always be a contentious battle in the Senate for confirmation of each appointee.
Mr. Stewart does an excellent job of giving a thorough context, historically, to each of the other cases the book examines (Plessy v. Ferguson in 1896, Lochner v. New York in 1905, Wickard v. Filburn in 1942, Everson v. Board of Education in 1947, Missouri v. Jenkins in 1990, and finally Obergefell v. Hodges in 2015). His introductory chapter is an excellent historical review of Article III, the article in the Constitution that established the high court.
Readers of “Supreme Power” will find comfort in the fact that the book does not pass judgment on the consequences of these Supreme Court decisions. But Mr. Stewart is not agnostic on the question of whether our nation is better off as a result, not only of these rulings, but of an all-powerful court that is not accountable to “we the people.” He is quite disturbed by the power of unelected justices who play fast-and-loose with the Constitution (he no doubt leans toward the “Originalist” philosophy).
And at the end of the book Mr. Stewart quotes Supreme Court Justice Samuel Alito’s minority opinion in the Obergefell (Same-Sex Marriage) case: “If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influences are willing to tolerate….”
“Supreme Power” is an outstanding primer for those with little understanding of judicial law. But make no mistake, it looks at the highest court in the land from the perspective of caution and concern. All of us should worry about what a 5-member majority’s claim of power portends.