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Chicago Tribune: Pelosi: Respecting the Constitution and the role of the Supreme Court

By Nancy Pelosi

Respect for the independence of the judiciary is a principle deeply embedded in our Constitution and reaffirmed by case law for more than two centuries.

As I wrote in a 2005 Tribune op-ed, 'an independent judicial branch was integral to our Founding Fathers' inspired design of government.'

It is with respect for the fundamental American value of judicial review that Democrats wrote and Congress passed health care reform. We believe it is constitutionally sound.

On the other hand, Republicans have had a long-standing opposition to judicial review -- until now.

The Republican Party stated its view on judicial review in its 2004 presidential platform: 'We believe that the self-proclaimed supremacy of these judicial activists is antithetical to the democratic ideals on which our nation was founded.' That platform specifically advocated using 'Article III of the Constitution to limit federal court jurisdiction.'

It is interesting now to see Republicans' newfound support of judicial review after the passage of health reform under a Democratic president. House Republicans have waged a long and aggressive fight against an independent judiciary, disregarding the 1803 Supreme Court decision Marbury v. Madison. That historic ruling established that 'it is emphatically the province and the duty of the judicial department to say what the law is.' The decision established the principle of judicial review and gave meaning to the separation of powers that protects the rule of law.

Indeed, for all of their professed adherence to the Constitution, it is striking that House Republicans have led repeated efforts to prohibit federal courts -- including the Supreme Court -- from conducting reviews, including reviewing the constitutionality of a law. They have gone so far as to pass extreme bills to bypass judicial review and deny Americans the right to challenge the constitutionality of a statute.

This concept, known as 'court stripping,' was long considered radical -- even by many conservatives. In the 1980s, William French Smith, President Ronald Reagan's attorney general; Arizona Sen. Barry Goldwater; and Justice Department official Ted Olson all publicly opposed these efforts, and proposed court-stripping legislation failed to pass the Senate. However, it is important to note that John Roberts, now the chief justice of the Supreme Court, wrote at the time: 'It is argued that divesting the Supreme Court of jurisdiction over a particular class of cases would undermine the constitutional role of the court as the ultimate arbiter of constitutional questions. The Constitution, however, does not accord such a role to the court.'

Former Republican Majority Leader Tom DeLay led the effort in the House of Representatives to embrace court stripping. The Republican House, on a largely party-line vote, passed the Marriage Protection Act of 2004, which barred federal courts from considering the constitutionality of the Defense of Marriage Act. The House also passed the Pledge Protection Act twice to bar federal courts from considering the constitutionality of the Pledge of Allegiance.

House Republicans have asserted that the Supreme Court is not the ultimate arbiter of the Constitution. Rep. John Hostettler, R-Ind., a member of the House Judiciary Committee and the chief sponsor of the Marriage Protection Act, claimed that Marbury v. Madison was 'wrongly decided' and that 'the notion of an independent judiciary… just does not bear out actually in the Constitution.'

House Republican views on judicial review are dependent on the outcome they desire. For laws they support, they argue that the court should uphold acts of Congress. In a House Judiciary Committee report on the Pledge Protection Act, they wrote, '(w)hen the courts, including the Supreme Court, were to decide constitutional issues, 'In all doubtful cases ... the act ought to be supported.''

Given this record of hostility to judicial review, it is difficult to fathom the newfound enthusiasm of some extremists in the GOP for Supreme Court action in the current health reform case.

Congressional Democrats have consistently respected the principle of judicial review. In writing the health reform bill, we honored the Constitution and believe the law will be upheld.