The Supremacy of the Supreme Court: What Can Be Done

The recent overturn of Roe v. Wade by the Supreme Court has shaken our national politics and nearly destroyed the myth of the nine justices as impartial arbiters of constitutionality.  The manner in which each justice responds to issues before the court is so predictable that they seem little more than political operatives.  In fact, their reliability as such is what leads to their nomination to the court.  The Roe decision was ripe for a reversal because there was not a clear constitutional basis either for or against an abortion right.  So, politics of its time pushed for the initial Roe decision, current politics pushed against it.  Politics may yet swing back to it.

Such wavering in opinion is not the worst aspect of the Supreme Court.  Far worse is the power it has to overrule the wills of the executive and legislative branches.  The Court has long exercised the right to nullify laws and regulations produced by the other branches of government based on consistency with the Constitution.  This is referred to as judicial review.  Does the Constitution give five unelected justices the power to overrule the will of the people as expressed by the actions of their representatives?  No, that power is not expressly granted in the Constitution.  It was assumed by the court, meaning it gave itself that right in the 1803 Marbury v. Madison decision and it became a tradition.  The Constitution assumed the legislature would fill in the details of how the judicial branch would be organized, not that it would be dominated by it.  In fact, existence of judicial review was one of the things that most frightened the founding fathers.  Consider this constitutional interpretation written by Thomas Jefferson in 1820.

“You seem … to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps … Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.” 

The members of the Supreme Court have indeed become “despots.”  The overturn of Roe v. Wade, reprehensible as it was, was not the worst example of despotism.  For that we turn to Shelby County v. Holder.  When Congress passed the Voting Rights Act in 1965 it recognized that some regions had a history of discrimination used to limit access to voting, and that those regions could not be trusted to follow the law.  Such regions would not be allowed to change their voting rules and regulations unless the changes were approved first by federal authorities.  The law also included an algorithm for deciding which governments, state or local, required this oversight.  These provisions were put in place for five years, but were then renewed and occasionally updated, maintaining them operative over the years.  The Supreme Court ruled these provisions to be constitutional several times.  Finally, in 2006, Congress renewed these provisions for another 25 years, deciding that this oversight would continue to be necessary.  When Shelby County v. Holder came before the Court in 2013, it ruled, in a 5-4 decision, that it was improper for Congress to extend the law for such a period without reevaluating its algorithm.  Five justices told Congress that they knew how to formulate legislation better than elected representatives, and discarded legislation already approved by the Court multiple times.  The result was as Congress expected.  The distrusted regions immediately began developing all sorts of new voting restrictions. 

The Republican Party now owns the majority on the Supreme Court and is thrilled.  Meanwhile, the Democratic Party is appalled by the injustices.  Ian MacDougall provided some advice for them in a Harper’s Magazine article: Courting Disaster: Why liberals should give up on the judiciary. 

MacDougall argues that the Supreme Court has almost always been too conservative and even if the current crew is run off the court, the result will probably be a reversion to a gang still too conservative for progressive tastes.  The fundamental problem stems from assuming lawyers are the appropriate people to make justices.

“Law is a conservative profession by nature. It attracts rule followers. Its practitioners tend to come from the moneyed classes, and then cater to their interests. The courts, too, tilt in this direction. They’re principally backward-looking, with the authority to maintain the status quo or restore the status quo ante. Federal courts are generally given the prerogative to curtail government programs but not to create or expand them. Likewise, judges often block regulatory action but rarely order it. This asymmetry lends itself to libertarian outcomes more naturally than progressive ones.”

“Given this structural and sociological bias, it’s not surprising that for most of American history the courts have been aligned with political conservatives and capital—the elites, who had the most to lose from popular democratic rule.”

Legislators must do their job of legislating and regulating under the eye of the public.  And they are generally educated and intelligent persons quite capable of interpreting what is and what is not allowed by the Constitution.  If anyone misbehaves, the voters can throw the bums out.  Liberal and conservative initiatives compete on a level field—as long as the Supreme Court is left out of it.

So, what is available as a course of action for the disgruntled if Constitutional amendment is not practical?  Congress has plenty of power if it wishes to use it.

“The institutional risk for the court is that the political branches will ignore its edicts. The court’s only real power is uploading PDFs of its decisions to its website, and there exists a tradition, called departmentalism, that several presidents have invoked to minimize the court’s authority. After campaigning against the Dred Scott decision, for example, Lincoln held that the Supreme Court’s readings of the Constitution bound only the parties before it, not the other branches, which could adopt different interpretations to guide their own work. In defiance of Dred Scott’s ban, Lincoln’s government began issuing passports to black Americans.” 

“Minimizing judicial review of federal statutes is among the easier cases to make, since national legislation bears the imprimatur of both coordinate federal branches. Congress could, for example, strip the court’s appellate jurisdiction over constitutional challenges to federal statutes. It could impose supermajority or unanimous voting requirements to strike down federal law. It could deprive the justices of the power to select the cases they hear. It could slash the court’s staffing budget—the law clerks do much of the hard work in chambers—to reduce the number of cases the court can decide or simply to signal congressional displeasure. There are colorable constitutional objections to each of these proposals. But, “disappointing as it may be to legal experts,” the Yale legal historian Samuel Moyn told Biden’s panel, when reformist moments arrive, the rules and language of politics, not constitutional law, tend to govern the debate.”

MacDougall also makes the point that having the Supreme Court be the ultimate arbiter of political disputes lessens the probability that political disputes can be resolved at all, further exacerbating the situation. 

“Constitutionalism won’t redeem a dysfunctional politics. To the contrary, a functioning politics, actively engaged with the material concerns of the populace, is a precondition for taming the courts; without it, bringing them to heel is of limited value. ‘Law reflects but in no sense determines the moral worth of a society,’ the scholar Grant Gilmore argues at the conclusion of The Ages of American Law, his classic survey of American legal history. The worse a society’s politics, he claims, the more it will lean on the law to resolve deep-seated disagreements, which tends to deepen them further still. ‘In heaven there will be no law, and the lion shall lie down with the lamb,’ Gilmore writes. ‘In hell there will be nothing but law, and due process will be meticulously observed’.” 

Something must be done to shake up the status quo.

You can learn a little about a lot of things or you can learn a lot about a very few things. Guess which is the most fun.