Sublime

After his landslide, Jefferson, in control of two branches of government, had turned his attention to the lone branch still dominated by the other party—the judiciary—moving, in the impeachment of Samuel Chase, to curb its independence. Now Roosevelt, too, moved against the judiciary’s independence. The Supreme Court had declared crucial New Deal m

The Americans have retained these three distinguishing characteristics of the judicial power; an American judge can only pronounce a decision when litigation has arisen, he is only conversant with special cases, and he cannot act until the cause has been duly brought before the court.

As Arthur Schlesinger Jr. was to write: The Founding Fathers appear to have envisaged the treaty-making process as a genuine exercise in concurrent authority, in which the President and Senate would collaborate at all stages.… One third plus one of the senators … retained the power of life and death over the treaties.

AND FOR MANY YEARS the Senate made use of its great powers. It created much of the federal Judiciary—the Constitution established only the Supreme Court; it was left to Congress to “constitute tribunals inferior,” and it was a three-man Senate committee that wrote the Judiciary Act of 1789, an Act that has been called “almost an appendage to the Co

it was not until 1913 that one of the caucus chairmen, Democrat John Worth Kern of Indiana, was generally referred to as a “Majority Leader,” although, as Floyd M. Riddick, the longtime Senate Parliamentarian, puts it, Kern still lacked “any official party designation other than caucus chairman.”

Johnson accomplished this transformation not by the pronouncement or fiat or order that is the method of executive initiative, but out of the very nature and fabric of the legislative process itself. He was not only the youngest but the greatest Senate Leader in America’s history. His colleagues called him Leader.

Antonin Scalia, the Supreme Court’s arch antigay justice, had posed a sarcastic question in his dissenting opinion in Lawrence v. Texas: If sodomy laws are overturned, “what justification could there possibly be for denying homosexuals the benefit of marriage?”48 None, was the implication. He’d been prescient.

“Justice, ’tho it may be an inconvenient restraint on our power, while we are strong, is the only rampart behind which we can find protection when we become weak,”

For my own part, I had rather submit the decision of a case to ignorant jurors directed by a skilful judge than to judges a majority of whom are imperfectly acquainted with jurisprudence and with the laws.]