Politics & Policy

The Supreme Court Has Been Making Policy

(Jonathan Ernst/Reuters)
It’s not what the Founders intended, and it’s riling up and dividing Americans.

This past Sunday I wrote an op-ed for the Pittsburgh Post-Gazette on President Donald Trump’s nomination of Brett Kavanaugh to the Supreme Court. Like most of my writing, it was moderate in tone. I praised Trump for the choice, complimented groups such as the Federalist Society and the Heritage Foundation for facilitating it, and hailed George W. Bush for bequeathing Trump such a strong bench. I also criticized Barack Obama and Harry Reid for the hubris that I believe animated their decision to do away with the judicial filibuster; I think they wrongly wagered that Democrats would retain the majority in our government.

All in all, a fairly mild-mannered essay. The response I received from outraged liberals was not. I was a hack, a charlatan, a Trump toady, etc., for ignoring the deviousness of Senate Republicans, especially Mitch McConnell, in their persistent efforts to delegitimize Obama, etc.

This visceral reaction got me thinking about how the role of the Supreme Court has really unhinged our politics. Not only are we fighting over fairly abstruse matters of senatorial procedure, but we are calling each other nasty names over it!

This is certainly not how the Framers anticipated the Court’s role in American politics. In Federalist No. 78, Alexander Hamilton assured skeptics of the Constitution that the Court was nothing to fret over:

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.

The Court has carved out for itself a position above and beyond the other branches.

Hamilton’s prediction turned out to be overly optimistic. In a nation such as ours, which reveres the rule of law and expects its elected officials to do likewise, the Court does not need to wield the purse or the sword for its judgments to have force. People obey the Court because the Court is part of a constitutional order that has widespread public support and esteem. And because of this, the Court has carved out for itself a position above and beyond the other branches, whereby its judgments can be overruled only by a later Supreme Court decision or by a constitutional amendment. This potential power was evident relatively early in our history, when, in 1795, the Eleventh Amendment was ratified to overturn the Court’s ruling in Chisholm v. Georgia, wherein the Court claimed for itself the authority to hear cases involving a citizen of one state against the government of another state. Given its power, one can view the Court as an institution of political federalism in an otherwise Jeffersonian Republican polity.

Typically, we think of the battle in the 1790s between the Federalists and Jeffersonian Republicans as being over the size and scope of the national government. To a great extent, this is true. But there was a related question that often sat not very far in the background: Who should actually rule? The Jeffersonians, while not modern-day democrats by any stretch of the imagination, were more comfortable than the Federalists with the notion of governing authority being vested in the citizenry. James Madison, Jefferson’s ally, proposed a plan of government that placed the House of Representatives at the center of the federal architecture. He thought that our governing institutions would have to “refine and enlarge public opinion,” as he said in Federalist No. 10, but that ultimately all governing power would flow at some point through a popularly elected house.

By contrast, a lot of Federalist anxiety can be seen as a worry about democracy “being made to operate in an improper channel,” as Hamilton once put it when criticizing a popularly elected executive in New York. His proposed plan of government granted lifetime tenures to both the president and senators, who would be separated from the people by electoral colleges.

The Court, of course, was separated from the people: Its members were to serve during “good behavior,” rather than for a fixed or renewable tenure. A key anxiety among the Founders was majoritarian tyranny, so the idea of a Court bound to the dictates of the ticklish masses was a frightening prospect indeed, regardless of whether one would come to view oneself as a Hamiltonian Federalist or a Jeffersonian Republican. As Hamilton wrote in Federalist No. 78, “the standard of good behaviour for the continuance in office of the judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government.” The extent to which the Court is immune from public opinion makes it a lot like the Hamiltonian presidency and Senate.

One of the problems with rule by a political elite immune from public influence is that the American people are not well suited to it. We the people expect to be in charge.

If the Court strictly avoided matters of public policy, this would never have been much of an issue. But this is not how it behaves. It is, and has long been, a policymaking branch. Even if it was scrupulous in hewing devoutly to matters of law, it would inevitably find itself influencing government policy. Moreover, as we all know, the Court often does not try to restrain itself, instead governing unapologetically as a kind of Federalist super-legislature — crafting public policy on the federal, state, and even local level, independent of direct public oversight.

One of the problems with such rule by a political elite immune from public influence is that the American people are not well suited to it. We the people expect to be in charge. We often explicitly reject the sort of deference that Federalism presumes we should grant our leaders. Consider, for instance, how John Adams was virtually laughed out of the Senate chamber when he proposed an ornate title for the president — “His Highness, the President of the United States of America and the Protector of their Liberties.” Consider, as a contemporary example, the American tradition of booing whenever sports announcers tell the crowd that a politician is in the stadium, attending the game. Another example: It doesn’t matter what your politics are, if you’re an American, the chances are very small that you’ll shrug your shoulders and say, “Oh well, I guess I was wrong!” when the Supreme Court rules in a way you disagree with. We will abide by the law, of course, but nobody is going to tell us that we should not get a say. In this way, we are all somewhat Jeffersonian in our politics.

And like good Jeffersonians, we have found ways to politicize the Court by proxy. This is actually a big reason that Jefferson was elected president in 1800. At that point, many members of the electoral college were still selected directly by state legislatures, so the Jeffersonians went about taking control of key legislative seats. They focused particularly on the elections for New York state senate in the City of New York. The contest was turned into a proxy vote on the Adams–Jefferson contest.

Today, we have done the same thing with the Court. Consider this particularly nasty battle over senatorial ethics — would anybody really care about this, except for the wide-ranging policy implications? Of course not! Moreover, did the Founders intend that the choice of a Supreme Court nominee would be one of the most lasting and consequential decisions any president could make? No! The president has (or at least, should have) substantially bigger fish to fry. But both the Senate and the president have found themselves deeply enmeshed in these matters because the nomination of a Supreme Court justice is the only means of control the public has over the policymaking powers of the Court.

I do not know what to do about this, or even if anything should be done. I personally think Madison had a better idea than judicial review to prevent “precipitate, . . . unjust, and . . . unconstitutional laws”: a congressional veto over state legislation, and a council of revision to check the Congress. But that ship set sail long ago. The Court’s role in our political system is now set, even though it has lately contributed to the derangement of our civil discourse.


Jay Cost is a visiting fellow at the American Enterprise Institute and the Center for Faith and Freedom at Grove City College.


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