Still The Least Dangerous Branch
Anna Quindlen argues that Supreme Court appointments are the most important choices presidents make.
Congress chips away at legislation, then sends some lowest-common-denominator version to the White House, to be signed or vetoed or later redesigned by the next president to take up temporary residence in Washington. But the work of the high court has had vast systemic influence over the lives of all Americans, an effect that lasts through generations. In the tripartite tussle, it’s no contest: SCOTUS rules.
The display of the Ten Commandments in public buildings. The scope of eminent domain. The reading of rights to defendants. The ability of taxpayers to litigate against faith-based government-funded programs. School prayer. Medical marijuana. Campaign ads. And that’s before you get to desegregation, abortion, affirmative action and capital punishment. If you try to register to vote in Indiana and are turned away because you don’t have a government-issued photo ID, that’s because the Supremes just ruled, 6-3, that that’s OK.
This is sheer and utter nonsense. In each and every one of these examples, the Supreme Court was merely reacting to public policy decisions made by executives and legislators.
Public officials decided to put up the 10 Commandments where, in some cases, they remained up for decades. Only when someone took a case to court did SCOTUS rule this was impermissible. Public officials decided to push the envelope on eminent domain and SCOTUS ruled that, indeed, they could.
Who put in those faith-based programs? Keeps pushing for novel ways to have public prayer? Test the limits of previous abortion rulings? Passes laws on marijuana? In all cases, it’s decision makers. The courts come in after the fact — and only after someone brings suit — to weigh in on the rules. That’s a tertiary role, not a leading one.
The Indiana voter ID law is a perfect example of how journalists continually misrepresent the court’s role. Hoosiers don’t have to show ID “because the Supremes just ruled, 6-3, that that’s OK.” They have to do it because the state legislature mandated that they do so and the governor signed off on it.
There’s no denying that the Supreme Court plays a major role in shaping public policy. They’ve weighed in on some of the most divisive issues in our history and have changed the culture in a handful of instances by striking down age-old practices. But, frankly, nobody’s disputing that.
While the Court, thanks to a shrewdly executed power grab by John Marshall in 1803, is more powerful than Alexander Hamilton intended when he described the judiciary as “the least dangerous branch,” so, too are the other branches. And the state and local governments. And the never-envisioned bureaucracy. The courts are so powerful precisely because we have so much government.
Still, the Supreme Court can’t send our troops off to war. They can’t raise your taxes. They can’t even pass laws. In the tripartite tussle, then, it’s no contest: SCOTUS is dead last.