President Trump successfully made the Supreme Court an important election year issue in 2016, and he is likely to do so again in 2020. This strategy works because for a long time the Justices have improperly placed themselves in the middle of many of our most important political, social, and cultural disputes. But elections shouldn’t be about judges, and courts shouldn’t be this important.
In a recent essay for Dissent magazine, Yale Professor Samuel Moyn wrote an excellent piece criticizing what he calls our “juristocracy.” According to Moyn, judicial review
has been a disaster for the democratic premise that the people themselves choose their own arrangements, shunting decision-making to a council of elders supposedly possessed of unique wisdom. And in exchange for its antidemocratic premises, juristocracy has not delivered the goods that popular interests and needs require. Only democratic politics can.
Why do we give unelected, life-tenured judges the important power to overturn state and federal laws? The original and best justification for judicial review is that our written Constitution forecloses some choices elected leaders may make, and we need an independent branch of government to enforce those limitations. This system makes sense where the Constitution’s rules are reasonably clear. However, the Supreme Court has for a long time taken it upon itself to invalidate legislation even when constitutional text is imprecise, its original meaning very much in doubt, and reasonable people can disagree over whether the Constitution should foreclose specific voter decisions.
Another justification for judicial review, forcefully argued by Professor John Hart Ely in his classic book Democracy and Distrust, is that the Court’s primary obligation is to make sure that our democracy is robust and our elections fair. Therefore, he argued that state and federal laws infringing freedom of speech and the right to vote should be reviewed carefully by the judicial branch.
Neither of those rationales however justifies much of the Supreme Court’s interference in normal politics. Three hugely controversial areas of public policy where the Court has wrongfully inserted itself are abortion, affirmative action, and gun control. The lower courts are full of cases in each category, with judges wrestling with unclear and often contradictory Supreme Court rulings. This term the Supreme Court has both gun control and abortion cases on its docket, and important affirmative action lawsuits are percolating in the lower courts against Harvard University and the University of North Carolina at Chapel Hill.
There is simply nothing in the text or history of the Constitution that privileges a woman’s freedom to terminate her pregnancy over state concerns for the fetus. Similarly, the Constitution says nothing, outside the context of a “well-regulated militia,” about the proper balance between gun rights and gun safety. And, there is nothing in the Constitution’s text prohibiting the use by public universities of racial preferences to assist traditionally disadvantaged minorities, and if anything, the history of the Fourteenth Amendment suggests such preferences are fully constitutional. In all three areas, the Justices have relied on their own values, politics, and experiences, not text or history, to reach their decisions.
The costs of this aggressive judicial interference have been high. For example, the Court’s involvement in abortion politics has infected local, state, and federal elections, and judicial confirmation hearings, in unhealthy ways for almost fifty years, and often in ways that have nothing to do with abortion. Moreover, even with judicial involvement, poor women, especially in rural areas, still face substantial obstacles to obtaining safe abortions. And, there is little doubt that, although abortion will be divisive in any government setting, the who-gets-to-decide question has made it immensely more difficult for both sides to compromise on this most difficult issue.
It is well past time for the Justices to leave this contentious debate to the American people where it belongs (those who are pro-choice may be pleasantly surprised where this debate ends if we could address it directly without the overlay of inappropriate judicial behavior).
This country went more than 200 years without the Supreme Court finding in the Second Amendment a personal right to own guns. Ever since 2008, however, when the Court first announced in District of Columbia v. Heller that the Constitution protects the right to own a handgun in the home for self-defense, the lower courts have been flooded with lawsuits challenging a wide variety of gun laws passed by state, city, and local legislatures. This litigation is time consuming, expensive, and unnecessary.
Justice Thomas, along with many gun rights advocates, often like to analogize the Second Amendment "right" to bear arms with the First Amendment right to freedom of speech. This analogy is off base for many reasons including the undeniable fact that many democracies all over the world have few or no gun rights whereas no democracy can flourish without robust freedom of speech. But even assuming a personal right to own guns exists under an Amendment the text and history of which is concerned with organized militias, no right is absolute and all rights have to give way to serious public safety concerns. For example, no group has the right to hold a march in Times Square on a Saturday night because the Court has long recognized that all speech, even political speech, is subject to time, place, and manner restrictions. Currently a woman's right to abortion is subject to state restrictions as long as they don't pose an undue burden on the right to choose (even if the regulation is intended to favor child-birth over abortion).
The Court should show even more deference to reasonable limitations on gun rights, given the serious public safety issues at stake. Moreover, which restrictions are reasonable and which aren't may well vary dramatically by geography. The appropriate balance between gun rights and gun safety in rural Georgia is obviously different than the correct balance in Times Square. National rules devised by federal judges simply cannot capture different local conditions. Absent completely irrational legislation, the Justices should allow the people and the men and women they vote into office to figure out where gun rights end and public safety concerns begin.
As for affirmative action, the total exclusion by public institutions of one race, even the white one, would certainly violate the Fourteenth Amendment’s equal protection clause, but that is not how schools are using racial preferences. Rather, in most cases, these preferences are intended to increase diversity and racial tolerance by admitting greater number of minorities to mostly white campuses. Moreover, although the Court has said that the goal of remedying centuries of slavery, segregation, and racial discrimination is not a proper justification for affirmative action, there is no legal basis for that political value judgment.
Although racial preferences may cause unwanted backlash or unfair stigma, those are questions of public policy for academic administrators, voters, and politicians to weigh against the benefits of affirmative action. The right balance, again absent irrational practices, should be left up to the people.
If Chief Justice John Roberts truly wants the American people to view judges in general and the Supreme Court in particular as non-political, as he claims, a first and necessary step would be for him to convince at least four of his brethren that the Court needs to step away from all three of these divisive issues as none of them violate clear constitutional text or well-accepted historical accounts of that text.
The Supreme Court has played much too large a role in our system of government for far too long. The Justices should let politics run its course absent clear constitutional mistakes by elected leaders. As Professor Moyn pointed out, “Juristocracy or democracy? It is an easy call.” A good start to restoring robust democracy would be to for the Court to extricate itself from the politics of abortion, gun control, and affirmative action.