We Tolerate the Supreme Court Because We Must

Over the last fifteen years, confidence in the Supreme Court has plummeted and nearly half of Americans now disapprove of the way it handles its job. There are a number of possible explanations for this, and a number of criticisms of the Supreme Court can reasonably be made—that it is out of touch with the times, for instance, or that it is anti-democratic. But most criticisms of the Supreme Court are not well reasoned, nor  theoretically sound, nor consistent. Liberal Supreme Court watchers criticize the court’s institutional shortcomings when really their beef is with the Supreme Court’s failure to advance a more progressive agenda. This sort of confusion is a dangerous threat to the makeup of the American republic and to our understanding of the role of the Supreme Court in our society. The recent article, “Why Do We Still Tolerate The Supreme Court?”, loosely framed as a book review by Slate’s Mark Joseph Stern, serves as a good example of this kind of confusion.

Stern argues that the “Supreme Court has consistently and unapologetically used its authority to thwart progress and perpetuate inequality.” Stern notes that judicial review is not explicitly guaranteed by the Constitution and argues that the Supreme Court wields too much power in its ability to invalidate democratic legislation passed by Congress. Implicit in Stern’s argument, of course, is that he means “Democratic” as much as means “democratic.” Describing a pattern of progressive court opinions in the last fifty years, Stern asks, “Are these triumphs enough to justify our tolerance for the court’s graver missteps?” Is the Supreme Court, on balance, more beneficial to liberals or conservatives? With that vast question in hand, Stern hints darkly that if the court heads too far in the wrong direction, we might as well do away with it entirely: “When the justices break [the rule of law], the remedy is obvious: The court has got to go.”

In his analysis, Stern makes the same mistake that many critics of the Supreme Court make: he suggests that the Supreme Court should act in the interest of certain political goals that Stern endorses, rather than in the service of constitutional interpretation. Good policy can be unconstitutional if it goes beyond the jurisdiction of the institution that implements it. If we are concerned with evaluating the success of the Supreme Court as an institution, we must judge the court by its ability to interpret the Constitution, not by its sympathy to our own political preferences. Stern, like many other critics of the court, fails to make this distinction.

Consider, for instance, Stern’s response to Hammer v. Dagenhart, a 1917 case where the Supreme Court determined that an act prohibiting the interstate shipment of goods banned by child labor laws was unconstitutional. For Stern, this is unconscionable: child labor is bad! Stern gives a heartbreaking description of children working in terrible mines and writes, “Why was that exercise of constitutional power illegitimate? Because five justices said so.” On the one hand it is true that the law was invalidated because “five justices said so.” That is, of course, how judicial power works everywhere where a court has the power of judicial review: when justices say something is invalid, their decision holds. But the justices in 1917 did not merely say the law was invalid. Rather, as justices always do, they gave a theoretical defense of their decision. Although Congress has the power to regulate interstate commerce, the court believed that the federal act went too far. William R. Day wrote, “The necessary effect of this act is, by means of a prohibition against the movement in interstate commerce of ordinary commercial commodities, to regulate the hours of labor of children in factories and mines within the States, a purely state authority.” This was a standard interpretation of the Commerce Clause at the time, in keeping with relatively conservative approaches to federal power. Stern can justifiably disagree with the jurisprudence here—it did, in fact, change over time, and Hammer v. Dagenhart was overruled in 1941. But he cannot argue that the decision was an arbitrary ruling designed purely to prevent progress. Then, as now, constitutional scholars debated legal issues intellectually and meticulously, bringing to bear various theories of political governance and textual interpretation. I cannot help but imagine that many critics of the Supreme Court would be humbled somewhat to read the arguments of Antonin Scalia or Ruth Bader Ginsburg. Purely partisan critiques of the Supreme Court miss the all-important theoretical aspect of judicial disputes.

There are other, better ways to talk critically about Supreme Court. The court is unelected and necessarily undemocratic; lifetime tenure means that aging justices can tie nations to political movements and theories long discarded by the majority of the population. An array of alternatives to the Supreme Court have been proposed; many of the founding fathers felt that a joint executive and judicial council should be able to screen laws before they were passed to make sure they were constitutional. Jefferson himself suggested a theory known as concurrent review, under which the different branches of government each would consider the constitutionality of items that came before them: two branches of the government might in unison be able to overrule a third. These ideas make for fascinating counterfactuals on how the American government might have developed, but they would unfortunately be unworkable today: with the modern president serving as the representative of a structured party, the executive branch would be unable to independently evaluate legislation in the manner that the early Americans foresaw. Nor can we do as Stern proposes and let the legislature itself, our “duly elected representatives,” be responsible for considering the constitutionality of the laws it passes. Giving the law-making authority the sole authority to validate or invalidate its own laws would be an exercise in constitutional futility.

The political reality is that we need the Supreme Court: it stands as a necessary impediment between legislative whim and enforceable law. It is in the interest of both parties that there exist an agency endowed with the power of judicial review: a robust court forces the dominant factions in government to operate within the framework of the Constitution and the Bill of Rights. Without a Supreme Court, liberals would have little recourse to a conservative government suppressing sexual and ethnic minorities; Stern himself routinely suggests that the Supreme Court invalidate democratic pieces of law across the United States that prohibit gay marriage. Likewise, without a Supreme Court, conservatives would have little recourse to a liberal government that overstepped constitutional limits in the name of economic and social reform.

But this does not mean that we need the Supreme Court we have. Sensible reforms can be made: one excellent suggestion is to impose eighteen-year term limits, instead of lifetime tenure. This way, each president would know that he would be able to make a couple of appointments per term: as appointments became less randomized, each party would have the security of knowing it could regularly expect to modify the composition of the court. Appointment battles would become less contentious and the Supreme Court would be more closely tied to changes in popular opinion.

Ultimately however, we need some Supreme Court. This fact will ultimately be dissatisfying to liberals and conservatives alike, as it always has been. But the reality of the Supreme Court is that it serves a crucial and irreplaceable station in the American state. To recognize this fact is a concession neither to conservatism nor to liberalism; it’s an acknowledgement of the importance of the rule of law.

The image featured in this article was taken by Phil Roeder. The original image can be found here.

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