The Sotomayor confirmation hearings are dominating the news all this week, though the outcome is a virtual certainty. One of the chief highlights of investing some time into watching them is seeing what Supreme Court jurisprudence means in our representative republic at this point in history.

C’mon, pay attention. I was asked on radio this week whether most Americans really don’t follow these things and don’t much care. Okay, probably.

But two things come immediately to mind here: One…whoever disregards important and historical events in the republic that so clearly illustrate the wisdom that ‘elections have consequences’, relinquishes their right to complain about how bad things get when they do. And two…more people in America seem to be engaged now in the political process than in decades.

On that radio program this week, one caller asked why the Supreme Court has such unchecked power, and whether anything can be done about it. Good question(s). Judge Robert Bork has referred to Supreme Court justices as ‘little kings’, and indeed some see themselves as such.

Matthew Franck analyzes how the Founders saw the court.

A good place to start is with the Supreme Court’s self-understanding—the justices’ own understanding of their power under the Constitution—which turns out to be ahistorical and self-serving.

And he was beckoning back as far as 1803, tracing it to 1958. It has become worse.

Nothing the Court has done or said in the last half century has deviated from this understanding of its unrivalled authority to interpret the Constitution, and the Cooper doctrine was a long time gestating before the justices delivered it in 1958. But it is, or ought to be, a shocking view to take of our constitutional order. Judicial supremacy—the doctrine that the nation’s governing charter means whatever a majority of Supreme Court justices say it means—is profoundly inimical to the separation of powers, to republicanism, and even to constitutionalism and the rule of law themselves.

There’s an upside and downside to this review.

The good news is that the Cooper opinion was wrong about Marbury, which in fact set forth a far more limited understanding of judicial power, consistent with the framers’ republicanism and separation of powers. The bad news is that our political system suffers from the disordering effects of judicial supremacy with no easy or obvious way out of the disorder.

So, we have a disordered legal/judicial system.

It is doubtless no accident that while the founders’ limited understanding of judicial power prevailed only one provision of federal law (in the Marbury case itself) was ever held unconstitutional. On the second occasion when the Court exercised this power—in the infamous Dred Scott decision of 1857—its ruling was transparently improper, intruding on Congress’s power to govern the federal territories and straining to manufacture a “right” to keep and transport slaves under the due process clause.

Abraham Lincoln saw through the great fraud of the Dred Scott case, identified the tyrannical impulse of the Court, and spoke for the founders’ constitutional understanding in his first inaugural address in 1861:

Read Lincoln. See how he regarded the binding nature of Supreme Court rulings and the consequent denial of citizens’ rights to be their own leaders. They will have “resigned their government into the hands of that eminent tribunal.”

Lincoln’s election to the presidency was, among other things, a repudiation of the doctrine of judicial supremacy espoused by his great rival Stephen A. Douglas. Yet in the seven score and nine years since that election, Douglas’s doctrine has become American orthodoxy.

With Douglas, our political and legal elites today regard the denial of the binding character of any Supreme Court decision as a betrayal of the Constitution itself; Lincoln’s position is made to sound strange and jangling to our ears, and we are soothed into resigning our government’s weightiest matters into the hands of our eminent philosopher-kings in robes, who are happy to employ such an unchecked power.

We’re about to anoint another one, at the end of this week’s proceedings.