The Least Dangerous Branch?
The apparently eminent demise of abortion rights has reignited an old debate.
The report that the Supreme Court is overturning Roe v Wade, the nearly half-century-old ruling establishing a Constitutional right to abortion, has renewed the age-old debate about the role that institution plays in American politics. Alexander Hamilton, arguing for the need for a federal judiciary in Federalist No. 78 (published May 28, 1788), wrote:
Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.
Still, its power was substantial:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
This is true even if we assume only the best intentions of the President and the Congress. They will naturally strain against the Constitution’s limits on their power in order to enact policies that they believe best serve the people.
[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.
It’s noteworthy that this power is nowhere mentioned in Article III, which lays out the powers of the judiciary, and that even many of the Framers opposed vesting it. As every schoolboy knows, Chief Justice Marshall declared in Marbury v Madison (1803) “a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.” While it would be half a century before the Court overturned another act of Congress, the precedent has stood ever since.
In the 219 years since, the courts, and especially the Supreme Court, have issued innumerable high impact decisions, all of which were controversial at the time and a handful of which (Dred Scot, Plessy, Korematsu) live in infamy. And, as has been discussed countless times, the public perception over the last half-century or so is that the Supreme Court is the central decider of our most important social issues, making judicial appointments central to our politics. This culminated with an outrageous but perfectly understandable power play by the Republican Senate to refuse to even hold hearings on the appointment of Merrick Garland to replace the late Justice Antonin Scalia, holding the seat open for ten months in the hopes that a Republican President, not the Democrat Barack Obama, would be elected and fill the seat.
You know the rest: Donald Trump won the 2016 election, despite getting 2 million fewer votes than his Democratic opponent, and appointed Neil Gorsuch to fill the seat. He was able to swap relative moderate Anthony Kennedy (a crucial vote for keeping some semblance of the Roe precedent alive) with the much younger and more radical Brett Kavanaugh. And, adding insult to injury, liberal lion Ruth Bader Ginsburg died less than two months before the 2020 election and Amy Comey Barrett was rammed through in record time.
That’s a long-winded setup for the liberal backlash that has ensued since Justice Alito’s draft opinion repudiating Roe. Vox‘s Ian Millhiser sees it as the latest exhibit in “The case against the Supreme Court of the United States.”
If the Court does what Alito proposed in his draft opinion, and overrules Roe v. Wade, that decision will be the culmination of a decades-long effort by Republicans to capture the institution and use it, not just to undercut abortion rights but also to implement an unpopular agenda they cannot implement through the democratic process.
And the Court’s Republican majority hasn’t simply handed the Republican Party substantive policy victories. It is systematically dismantling voting rights protections that make it possible for every voter to have an equal voice, and for every political party to compete fairly for control of the United States government. Justice Alito, the author of the draft opinion overturning Roe, is also the author of two important decisions dismantling much of the Voting Rights Act.
This behavior, moreover, is consistent with the history of an institution that once blessed slavery and described Black people as “beings of an inferior order.” It is consistent with the Court’s history of union-busting, of supporting racial segregation, and of upholding concentration camps.
Moreover, while the present Court is unusually conservative, the judiciary as an institution has an inherent conservative bias. Courts have a great deal of power to strike down programs created by elected officials, but little ability to build such programs from the ground up. Thus, when an anti-governmental political movement controls the judiciary, it will likely be able to exploit that control to great effect. But when a more left-leaning movement controls the courts, it is likely to find judicial power to be an ineffective tool.
The Court, in other words, simply does not deserve the reverence it still enjoys in much of American society, and especially from the legal profession. For nearly all of its history, it’s been a reactionary institution, a political one that serves the interests of the already powerful at the expense of the most vulnerable. And it currently appears to be reverting to that historic mean.
I’m old enough to remember the Warren Court and the widespread sense that the Supreme Court had effectively become a sitting constitutional convention, routinely substituting its relatively liberal preferences for those of the people’s elected representatives. And even the modern court, filled as it is disproportionately with Republican appointees, was well ahead of the country—and, certainly, the Congress—on gay marriage and transgender rights.
Still, Millhiser is fundamentally right. While I’m more willing than he is to forgive past Justices for being creatures of their time, the very nature of the institution is conservative. Hamilton was among the most enthusiastic supporters of his day for a powerful central government and his advocacy for a strong judiciary was cutting edge as well. But a judiciary that does what he expounded in Federalist 78 is inherently conservative in that it is supposed to reconcile the actions of elected policymakers with the boundaries of a document written in 1787 and only amended at the margins in the intervening 233 years.
So, while I see many of President Franklin Roosevelt’s New Deal policies as reasonable, if not essential, given the dire circumstances of the Great Depression, the Supreme Court was surely right in saying over and over that they violated the Constitution. And, alas, while the theoretical answer is to pass amendments to reconcile the needs of the times with the fundamental law, the practical reality is that doing so is next to impossible because it requires the support of two-thirds of both Houses of Congress and the assent of three-quarters of the state legislatures.
The Intelligencer‘s Jonathan Chait uses the news to call for “An End to the Liberal Romance With Courts.”
Americans — liberals in particular, and boomers especially — have been suffering from a misplaced faith in the Supreme Court as the guarantor of rights and liberties. The right to abortion will not be secured by the occupants of a gleaming marble building. It will be the work of politics — activism, persuasion, and voting — that will control its fate.
For most of its history, the Supreme Court was a nakedly reactionary institution. The Court destroyed civil-rights laws in the 19th century and progressive economic legislation in the 20th, right up until midway through the New Deal. The Constitution, as interpreted by the Court, created rights for social and economic elites that Congress could not touch.
In the second half of the 20th century, the Court reversed its historic character and began handing down liberal rulings. Roe v. Wade was the apogee of the Warren and Burger Courts, and the era imprinted the image of a liberal Court on the public mind.
Even as control of the Court has passed into the hands of conservatives, who have turned it back into its historic role of creating conservative rights — to pollute, to carry weapons almost anywhere, to thwart a Medicaid expansion — rather than liberal ones, the old impression has endured. Last fall, a Gallup poll found Democrats and Republicans approved of the Court equally, while a Marquette University poll found it had slightly higher approval among Democrats — an extraordinary assessment of a body controlled by six conservatives, half of whom were chosen by Donald Trump.
Roe v. Wade has become affixed in the public conscience as a synonym for the right to abortion. But one can support the right to abortion without believing that right is protected by the Constitution. (I personally believe people have the right to abortion and all essential medical services, but I don’t think the Constitution is the source of the right either to abortion or to health care generally.) After Roe, the fight for abortion rights will revert to an openly political struggle. The Court is not ending the abortion debate. It is throwing it open.
This has been my position for as long as I’ve cared about such things—more than four decades. It is, alas, not that simple. While I still fundamentally believe that the political process, not unelected judges, should make public policy decisions, I’ve come to realize that our political system is much less representative than we’d like to believe. Further, even if our system were truly democratic, it’s problematic, to say the least, to subject the rights of the least powerful among us to the wishes of the majority.
My friend and co-blogger Steven Taylor has written countless posts here and elsewhere about the unrepresentative nature of our system. Most obviously, the Great Compromise gives outsized power in the Senate to the small states, which are disproportionately rural and Republican. The House does this in a modest way because each state is given at least one Representative and, because Republicans are both more eager and in a better position to gerrymander districts in their favor. And, because we filter our Presidential elections through the bizarre mechanism of the Electoral College, these irregularities are transferred to the Executive, such that we’ve had two Republican Presidents in recent memory that lost the popular vote. This is all compounded by the fact that most elections essentially uncontested, such that the winner is effectively chosen by the rabid ideologues that vote in that party’s primary.