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EXCERPT FROM THE MOST DANGEROUS BRANCH:
WE’RE ALL JUDICIAL ACTIVISTS NOW
In our constitutional system, the justices of the Supreme Court are deities, announcing the law of the land from on high. And while liberals and conservatives disagree about desired results, they are indistinguishable in their view about that primacy. Asked about the premise of my book, The Most Dangerous Branch—that the Court, in case after big case, too often acts when it should not—a liberal justice and a conservative each gave the same answer: “I half-agree with you!”*
Distrustful of popular will when it’s inconvenient, litigants from both sides of the ideological aisle rush to the Court to prosecute grievances or to claim perceived rights that eluded them in Congress (and in state legislatures). Abortion, gun control, campaign finance, gay marriage—these are among the difficult issues that the Court chooses to resolve. So we don’t bother to fight them in elections —the results of which can be overturned the following November—when a victory in the Supreme Court can cement an outcome for a lifetime? Why attempt to persuade millions of citizens to endorse a position when all you need is five of nine unaccountable justices? Each time demonstrators convene outside the Court, they surely miss the irony that they’re marching right past the Capitol across the street.
When the Court anoints itself as arbiter, the winning side exalts the courage of the justices. The losers holler about “an imperial judiciary.” What exactly is the difference between “making the law” and “interpreting the law”? It’s merely about whether you like the way the justices voted in today’s case. We all favor “judicial restraint” and oppose “judicial activism”—except, naturally, when we don’t, in which case we just call them by the opposite label. “Judicial restraint”—and its cousin, “strict construction” of the Constitution— are the chameleons of American law, instantly able to change philosophical color when expediency requires. “Judicial activism” is what the other guy does. But in truth, everybody’s an activist now.
The corrosive result is twofold: an arrogant Court and an enfeebled Congress that rarely is willing to tackle the toughest issues. Each feeds on the other. The justices frequently step in because they believe the members of Congress—elected by the people though they may be—act like fools or, like cowards, fail to act. Happy to stay off the battlefield, Congress seldom raises a peep, other than to crowd the cameras during occasional Senate confirmation hearings on a new justice. The result is dwindling public faith in both institutions.
The triumphalism of the Court—its eagerness to be in the vortex of social and political disputes, its wholesale lack of deference to the other branches of government—explains in part the cynical uses to which it has been subjected by presidents and senators. That cynicism, masquerading as “fidelity to the rule of law,” is understandable. But the Court’s drop in standing among the public in recent decades—the reason opinion surveys and mainstream commentary have so often reflected an attitude that the justices are partisans-in-robes—is a mostly self-inflicted wound. Forget the robes—maybe the job should come with tights and a cape.
That reflects not a liberal or conservative sentiment, but a growing conviction that the Court has squandered its institutional capital. It is altogether possible to be politically liberal and to oppose an aggressive Court. It is entirely consistent to be politically conservative and to oppose an aggressive Court. Political ends do not justify judicial means.
Under Chief Justice John G. Roberts Jr., there is a now-ascendant conservative “bloc” of justices, appointed by Republicans, and there is a liberal “bloc,” appointed by Democrats. The tendency toward viewing judges as political proxies has only accelerated during the Trump presidency. When journalists write about a justice, they routinely include the party of the president who appointed the justice—as if members of the Court were little different than stand-ins at the Department of Agriculture. When the votes of justices in controversial cases can be predicted at the outset, constitutional law simply becomes partisan politics by another name. If you usually know beforehand how justices will come out—and if it’s a function of the political party of the president who appointed them—why have a Court at all?
A month before the Constitution was ratified in 1788, Alexander Hamilton explained the source of the new Court’s authority. The other branches—and the people—would obey the Court because of its prestige. Rulings would be based “neither on force nor will, but merely judgment,” he wrote in Federalist No. 78. The Court lacked infantry and warships. It had no source of revenue except what Congress gave it. By Hamilton’s reckoning, whereas the president “holds the sword” and Congress “commands the purse,” the U.S. Supreme Court would be “the least dangerous branch.”
That’s no longer so. We know that Congress can pass unwise laws. We’ve come to realize that a president can initiate foolish wars, abuse his executive authority, and spread lies. But the Supreme Court’s power grab in recent decades is more insidious, more destructive of American values in the long term. Impatiently, myopically, with deep distrust in our elected representatives, we have come to believe democracy is broken. And too often we’ve come to see the justices as our saviors. With so much dysfunction in government, the justices see themselves that way, too. But we need more politics, not less politics. We do not need, nor should we want, the court to save us from ourselves.
Adapted from THE MOST DANGEROUS BRANCH: INSIDE THE SUPREME COURT’S ASSAULT ON THE CONSTITUTION Copyright © 2018 by David A. Kaplan. Published by Crown Publishers, an imprint of Penguin Random House LLC.
