"PS. And might I add that the instability of your formulation is most clearly evidenced by your conflating of rulings that upheld legislative actions (e.g., Plessy v Ferguson) with rulings that struck down legislative actions (e.g., Lawrence v Texas)."
I do think that this introduces any instability in my argument. I am focused on who has the ultimate power. In the United States, it is the Supreme Court that has the power to strike down legislative action, but also to ratify legislative action and thereby make it stable law. The statute passed by the legislature in America is only provisional. It is the Supreme Court's approval or rejection of this statute which makes it law.
Voir the example of the ban of the partial birth abortion in America. The US Congress passed such a statute, but the country looked immediately to the courts to instantly injunct the statute until the judiciary could decide whether or not that statute would in fact become a law in America or not.
What made segregation a law in America, all in spite of three post Civil War Amendments and the Civil Rights Acts of 1866 and 1973, was the decision of the Supreme Court in Plessy to disregard the three constitutional amendments and two congressional statutes in favor of state statutes allowing for the segregation of black people. So the lesser legislature in the state was elevated to supremacy over the meaning and intent of the 13th, 14th and 15th Amendments of the Constitution, and the Civil Rights Acts of 1866 and 1873, because the final, supreme source of American law, the Supreme Court of the United States, decided that, in its bonne opinion, that segregation by the state legislatures' statutes should override the Constitution and Congress.
We may be focused on different things.
I focus not on the intricacies of American judicial process and its intendant internal fictions, but where the ultimate power resides.
Whether the Supreme Court upholds a legislative action or strikes it down is to me not really the point. The point is that it is the Supreme Court that has to power to say to Congress "Good boy" or "Bad boy", and that Congress and the President obey the Supreme Court, but the Supreme Court's decisions, except in the case of Presidents Lincoln and Jackson, have never themselves been struck down by either Congress nor the US President, nor by the states.
Laws have been changed in reaction to the Supreme Court, but this is not the same thing, because those laws too are then reviewed by the Supreme Court, with the Supreme Court ultimately deciding to accept or reject them. The Supreme Court can, and does, strike down acts of Congress and of the President. The last time any act of the Supreme Court was directly struck down (as opposed to being accepted but then legislated around, with the Supreme Court holding the final judgment over such successor legislation) was by President Lincoln's simple and direct nullification of Supreme Court habeas corpus orders during the Civil War.
I am looking at power, and it is clear to me that if one branch of government not only makes laws, but routinely and systematically strikes down acts of all other branches of government, while itself is never, ever directly overruled nor struck down, ever, even once in 150 years, that branch of government holds supreme power in the land.
In America, the supreme power, by my straightforward standard of analysis, is concentrated in the aptly named Supreme Court.
What you have said is interesting, because I had not thought about it from the perspective of that being in fact ratified, albeit silently, by the US democracy. But I suppose this is true. Americans accept that the Supreme Court is the supreme element of their government. The minority, which seems to include an awful lot of people I talk with, think that this is an excess of power. But the majority of Americans apparently think that this is the American Constitutional structure, and want to keep it that way.
Am I incorrect?
ARTICLE 10. The right of citizens to personal ownership of their incomes from work and of their savings, of their dwelling houses and subsidiary household economy, their household furniture and utensils and articles of personal use and convenience, as well as the right of inheritance of personal property of citizens, is protected by law.
Yes, in my view most Americans are perfectly content with the amount of power the government exercises, and if anything wish that it would exercise more, so long as it does so for their pet interests. To the extent that they disagree with the immense power exercised by each of the three branches, it is because the power is not exercised in precisely the way they desire.
I am under no delusion whatsoever that a majority agrees with my views.
No, I do not agree that the Supreme Court is the ultimate arbiter. It is a coequal branch.