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December 3 - December 12, 2018
More than Congress, sometimes more than the president, it is the Court that holds sway. That was why so many voters in the 2016 Trump-Clinton election made their choice based on whom they thought their candidate would appoint to the Court—as if the Court was just another political prize. Is that really how democracy was supposed to work?
By interjecting themselves into issues that the two elected branches of government were confronting—and rendering those branches largely impotent—the justices had been upping the ante for each future seat on the Court.
When the Court anoints itself as arbiter, the winning side exalts the justices’ courage. The losers holler about “an imperial judiciary” who are just politicians in fine robes. 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.
In fact, originalism and textualism are just another means of interpretation. And because they favor a status quo forever fixed in the 18th century, they tend to favor the “haves” of that time—and to disfavor all others, including minorities and unpopular litigants.
Why fight out politically charged questions in an election—the results of which can be overturned in the next one—when a victory in the Supreme Court can cement an outcome for a lifetime?
Why try persuading millions of citizens to endorse a position when all you need is five of nine appointed justices?
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—what’s the point of having a Court? Did we really establish a system of self-government in which those life-tenured judges decide so much social policy?
Thus began the great Bush-Gore recount that went on for 37 days. The Democrats wanted only to keep recounts going. The Republicans did all they could to run the clock out. Each side claimed the higher moral ground, but if Gore had led or if Bush had trailed, each would have adopted the opposite position. Realpolitik didn’t constitute hypocrisy. Invoking principle, even though you would abandon it tomorrow, did.
defeated. The Constitution and federal law set up procedures for resolving a contested presidential election. And none of the procedures involved the Supreme Court. This was the system properly, if lumberingly, at work.
was bad enough. But it was worse if one believed what her husband revealed a few months after Bush v. Gore was decided. At a large charity dinner, he told another guest that Sandra had voted as she did—even though “she knew it was wrong”—in the hope that she would be able to retire sooner. That was inconsistent with what she had said at the Court—that she had real objections to what was happening in Florida. But it would have been inconceivable for her to acknowledge to colleagues or clerks—or to herself—that she consciously chose Bush over Gore despite knowing it was wrong to do so.
Some members of Congress actually announced they were relieved the Court took on the dispute. This abdication of responsibility, of course, was less about faith in the justices than about the legislators’ dread they might have to act—and be held accountable by voters.
By the time of the 2000 election, Roe v. Wade had been the bête noire of the American right for nearly three decades. For justices like Scalia and Thomas, the ruling epitomized the sins of an activist Court, adrift from its constitutional moorings. In Bush v. Gore, the Court came full circle. Constitutional law had become the continuation of politics by other means. The lesson for conservatives was Justice William Brennan’s Rule of Five. Roe was of course about abortion, whereas Bush v. Gore was about an election. But they were flip sides of the same coin at the Court: “If you have five votes
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But Bush v. Gore nonetheless reflected an attitude and an arrogance that continued to embolden the Court. Several months before the ruling, Gallup reported that 62 percent of Americans approved of the way the Court did its job. The percentage has been lower ever since.
Reagan, who had signed strict gun measures while governor of California, now switched sides (as he had done on abortion).
Only later did the NRA turn to politics. And even then, it supported the 1934 and 1968 gun laws. It was not until 1977 that Second Amendment absolutists took over the NRA, at its annual meeting—voting out what passed for moderate leadership, in the midnight “Revolt at Cincinnati.”
When Scalia was championing a partisan cause, it was “fidelity to law,” whereas when his liberal colleagues did so, it was “injecting their values into judging.” When he declared “a brand-new ‘constitutional right,’ ” Siegel observed, he insisted he wasn’t taking a side in the culture war—he was “rescuing” the Constitution “from the politics of the culture war.”
By the end of the 2016 presidential year, 2,394 Super PACs spent more than $1 billion on federal elections alone (and raised $700 million on top of that)—again, most of it on negative ads. (Seven percent more was spent on Republican candidates than Democrats.) Do the math: that’s a lot of “speech” uttered by a small number of organizations, Yes, the organizations consisted mainly of individual donors, but, no, those individuals weren’t Mom and Pop U.S.A. Most Super PAC money came from a few hundred wealthy individuals.
Without ever mentioning the two new justices by name, he underscored how their arrival had created a new Court. Reading the sentence slowly, drawing out the key words, he said, “It is not often in the law that so few have so quickly changed so much.” Breyer believed his Parents Involved dissent to be the most important opinion in his more than 20 years on the Court.
As that possibility increased, much of the legal right discarded talk of merely returning the Court to its more minimalist roots or merely undoing such rulings as Roe. With five votes, such changes were too modest. Now the goal would be to get the justices to recognize new constitutional rights—to do precisely what conservatives had denounced liberals for doing for decades. Conservatives of course didn’t admit it would be just more judicial activism. Instead, many rebranded their aim as “judicial engagement.”
The more accurate assessment, though, would acknowledge that the 2017–18 term was a pageant of hypocrisy, driven less by an honest reckoning of hard cases than by conforming to a conservative political agenda.
Other branches surely can do grievous harm, and have: tolerance of slavery for decades; failing to head off the Great Depression; 58,000 American deaths in the Vietnam War; and countless missteps on taxation, education, debt, infrastructure and other vast swaths of policy. But the Supreme Court’s accretion of power—steady, subtle, unstated—produces its own danger. We have come to expect from the Court what it should not deliver. And in turn we demand even less from our democratically chosen representatives.
