The Danger in Relying on the Court

 /  Feb. 15, 2017, 5:57 p.m.


Neil Gorsuch’s high qualifications and his rigid conservatism are a threat to the Democratic Party. When Donald Trump nominated Gorsuch for the Supreme Court, Democrats were quick to express their resistance, with Democratic Senate minority leader Chuck Schumer saying, “Judge Gorsuch has repeatedly sided with corporations over working people, demonstrated a hostility toward women’s rights, and most troubling, hewed to an ideological approach to jurisprudence that makes me skeptical that he can be a strong, independent Justice on the Court.” The fact that the potential appointment of Gorsuch to the Supreme Court has Democrats so alarmed reveals their harmful reliance on the court system over the years.

Though Gorsuch is no friend to the Democratic Party, liberals should heed his advice from a 2005 article he wrote in National Review entitled “Liberals ’N’ Lawsuits.” Gorsuch explained how Democrats’ reliance on the courts to enact their agenda backfires on them. “Liberals may win a victory on gay marriage when preaching to the choir before like-minded judges in Massachusetts,” he writes. “But in failing to reach out and persuade the public generally, they invite exactly the sort of backlash we saw in November [2004] when gay marriage was rejected in all eleven states where it was on the ballot.” Ten years later, it seems, liberals did not learn any lessons when we relied on the courts to legalize gay marriage nationally. Now, because gay marriage resulted from a court decision and not through the ballot, a new conservative court could easily overturn the 2015 Obergefell decision, dismantling this Democratic “victory” for gay marriage.

Why is it that the left is so frightened by Gorsuch and other Republican judges likely to come from a Trump presidency? The inconvenient truth is that we as Democrats are the minority party. We are in the minority in the House, the Senate, statehouses and governors’ mansions across the country, and, of course, in the White House. If we were in the majority, we would have much less to worry about, and we could even enact actual legislation that furthered social progress. Instead, many progressive accomplishments, like gay marriage, have not been solidified by legislation, but instead rest on the shaky foundations of a court that could just as easily reverse this progress.

Legislation legalizing gay marriage that was passed in state legislatures would not be overturned by the courts. Even conservative justices have long maintained that marriage is an issue best left to the states, a conception that leaves states constitutionally free to legalize gay marriage. But a court filled with conservative justices could easily end legal protections for gay marriage as they exist at present. Why? Because the legalization of gay marriage came about through an activist court, not through legislation. The solution to this problem of over-reliance on the courts is incredibly straightforward. Liberals just have to focus on actually winning elections instead of hiding behind the courts. Gorsuch writes that during FDR’s tenure as president, the left successfully used the court and the ballot box to enact lasting changes. And these changes, which were brought about during the 1930s, have endured until today. When we actually win elections and transform our electoral success into legislation, our efforts can last for generations. When the left loses elections and relies on the bench to do its work for it, its accomplishments are on a shaky foundation and can be dismantled quickly and easily.

While the left needs to put a limit on its tendency to rely on judicial activism, there are appropriate ways to use the court as a check on the other branches of government. For example, part of Trump’s executive order bans citizens of seven countries from entering the U.S. regardless of any visa they may hold. The Democrats, rightly, have opposed this order and are now looking to the federal courts to oppose Trump’s plan. This is the correct way to use the courts—as safeguards against government actions that are unconstitutional. But if the Democrats want to accept more Syrian refugees or provide additional protections for Muslim Americans in the face of Trump’s hostility, they have no alternative but to legislate from Congress, not from the courts. Thomas Jefferson saw a danger in a court that pushes an agenda, saying, “The great object of my fear is the federal judiciary. That body, like gravity ever acting, with noiseless foot and alarming advance, gaining ground step by step, and holding with it gains, is engulfing insidiously the special governments into the jaws of which feeds them.”

Generations later, Abraham Lincoln also saw the problems of an activist court, which he believed could make grave mistakes in legal reasoning, as it did in the infamous Dred Scott decision in 1857. This decision was not based on the Constitution but rather on the private beliefs of the judges, which is why Lincoln told listeners of his speech that “it is not resistance, it is not factious, it is not even disrespectful, to treat it [the Dred Scott decision] as not having yet quite established a settled doctrine for the country.” It is in cases like Dred Scott that the danger of relying on an activist court becomes evident. While an activist court can be a tool (although an undemocratic one) to advance Democratic legislation, it can also be a tool to reverse progress. If Democrats push courts to activism, they will have little ground to stand on when they lose control of the Supreme Court, as well as the political branches of government.

Now, if we as Democrats really want to protect the social and economic rights we fought for, we should stop prioritizing the court. Our priority should be electing Democratic politicians across the nation who will enact legislation and maybe even constitutional amendments that a court, no matter how conservative it is, cannot dismantle. Moreover, if we elect Democrats across the nation, liberal courts will naturally follow. But even when we have those liberal courts back we must remember: the strongest and most durable progress does not come from the courts; it comes from the voters and their representatives enacting legislation.

The image featured in this article is licensed under Creative Commons. The original image can be found here.

Jonah Ullendorff


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