How to Curtail Judicial Activism

I hear frequently in this year’s election campaign that Supreme Court appointments should be the key consideration in the choice between the presidential candidates. That’s certainly understandable, and perhaps true. It reflects, however, an unfortunate attitude—widespread and deeply ingrained in the American psyche—that the Court is somehow the ultimate, sovereign institution in the United States. This was far from the thinking of the Founding Fathers. Alexander Hamilton in Federalist 78 called the judiciary the “least dangerous branch.” He said that the legislative branch has the purse and the executive has the sword, and all the judiciary has is judgment. The first great Chief Justice, John Marshall, fearful of the Supreme Court’s becoming a powerless institution in American political life, had to use a deft political maneuver in Marbury v. Madison in 1803 to secure the Court’s power to declare acts of Congress unconstitutional (what’s called the power of judicial review).

Things have certainly changed. While most of the Court’s decisions do not significantly reshape the law, some historically have had the effect of profoundly altering the course of American life and had major political and even moral implications (e.g., Dred Scott v. Sandford on slavery, Plessy v. Ferguson and Brown v. Board of Education on segregation, Roe v. Wade/Doe v. Bolton on abortion, Obergefell v. Hodges on same-sex “marriage,” and the public school religion cases in the decades after World War II). Although the Court is certainly influenced by politics—the old mantra was that “the Supreme Court follows the election returns”—it also is not hesitant to impose on the majority national policies pushed by a minority who are well-placed opinion-makers. A few early on saw the likelihood that the judiciary in America would aggrandize power. Even though Federalist 78 seems to see a judiciary of limited power, as the proposed Constitution was being debated in 1788 Anti-Federalist Robert Yates argued that it would become the preeminent branch and move to extend its reach because its power was not clearly circumscribed. In his noted dissent on the Pennsylvania Supreme Court in the case of Eakin v. Raub a generation after Marbury, Justice John Bannister Gibson cautioned that judicial review knew no limitation.

While the great constitutional scholar Edward S. Corwin showed that the Founding Fathers believed that judicial review in some form would emerge, there is hardly a doubt as he and others emphasized that the Court’s powers were intended to be limited. It was, again, to be the least dangerous branch. As Russell Kirk pointed out, the Founders sought to establish an independent judiciary and not “an archonocracy—a domination of judges.”

Separation of powers and checks and balances, of course, were supposed to be the means that our constitutional order put in place to stop any one part of the government from becoming inordinately powerful. The problem respecting the Supreme Court, however, is that such checks long since have been narrowed down to merely judicial appointment. That explains why the Supreme Court becomes a key issue in presidential elections. There’s almost an implicit acceptance of the Court’s place as an ideological institution—something like another legislative chamber, but the preeminent one—and a presidential election is partly a referendum on which version of our ideological masters are to rule for the next quarter-century. It’s not even in the picture that Congress should carry out its prerogative under Article Three of the Constitution to alter and remove the appellate jurisdiction of the Court on whatever areas it wishes. Even the supposedly “judicial restraintist” Republicans don’t talk much about that. And certainly perish the thought that Congress would ever exercise another of its constitutional prerogatives: impeaching Supreme Court justices who render unconstitutional decisions.

Frankly, in ideologically polarized times—when the ideological fault-lines, along with the Washington go-along attitude, immobilize it as a leading force in American politics—we can hardly expect Congress to act upon these prerogatives. What we should be thinking about when it comes to “curbing the Court,” to use Corwin’s phrase, is executive power. As suggested at least subtly by Hamilton’s saying that the executive is the one with the sword, and as just a little bit of thought about it confirms, judicial decisions—including those of the Supreme Court—are not self-enforcing. They require the executive to carry them out. After all, the executive executes the law. Instead of judging presidential candidates through the lens of whom they’ll appoint to the Supreme Court, we should be thinking about whether a prospective president is willing to resist and refuse to enforce clearly unconstitutional decisions of the Court. That is perhaps the most fundamental presidential check on the judiciary, and the one that will have the most immediate effect. This is much better than waiting for a possible opening on the Court and then seeing if the person selected, which for Republican presidents usually means a compromise choice to weaken leftist opposition, will be able to help stem our constitutional decline over a twenty-year or so period.

Far from wondering if a president has the power to do this—that is, blocking an unconstitutional judicial action from taking effect—I would argue that it’s his duty. After all, he takes an oath to uphold the Constitution. Without a doubt, that includes stopping any attempt by another branch of government to subvert it.

If anyone gasps at such a notion or claims that it’s unheard of, he should check the historical record. Andrew Jackson refused to enforce the Court’s decision in Cherokee Nation v. Georgia on the Indian removal. Abraham Lincoln refused to follow Chief Justice Roger Taney’s order in Ex parte Merryman to end suspension of habeas corpus after the Civil War broke out. In his First Inaugural Address, Lincoln also made clear that the Court’s decision in the Dred Scott case could not preclude the political branches of the government from going ahead and acting on slavery in the territories. In a memorable line, he said if it were otherwise “the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

How might a president opposed to the cultural leftist drift of the Supreme Court have responded, say, to the Obergefell same-sex “marriage” decision? He could have said that any state that didn’t want to issue marriages licenses to same-sex couples would not have to do so, and that to back it up he would have ordered the U.S. Marshals Service—which is really an executive agency under presidential control even though it normally serves the federal courts—to block any attempt to enforce court orders directed at recalcitrant state officials or even deliver them to them. Whenever something like that—or any kind of genuine resistance by the political branches to the Court (even something like FDR’s failed court-packing plan)—occurs, the historical record shows that the Court ceases to be so bold and beats a retreat for a generation. It gets shocked into realizing anew what Federalist 78 expressed: that at bottom line its strength depends on its aura of authority.

Why has the judicial branch become almost immune from checks and balances? Part of it, to be sure, is because of the support for it by the leftist opinion-makers as a way to promote their agenda and also the benevolent view that some demographic groups have of it in light of how it has historically come to their aid (for example, on desegregation). I believe that there is a more basic reason, however. The public has long unquestioningly embraced a mythology—which seems to be unshaken even by the periodic, well-publicized political controversies over Supreme Court nominees—that somehow the Court almost axiomatically understands the Constitution better than mere politicians or anyone else and is its true guardian. In effect, without seeing the ramifications of this too many believe that the Court in some sense equals the Constitution. So the Court cannot be interfered with, regardless of how great its abuses are.

To be sure, this reflects the poor state of American citizenship education and understanding of governmental institutions and the law generally. (I experienced a good example of this recently as a guest on a radio program when a caller tried to claim that the First Amendment stops private entities from regulating their employees’ speech. Actually, it’s Constitutional Law 101 that the provisions of the Constitution—with very few exceptions, like the Thirteenth Amendment—apply only to governmental, not private, action.) I believe that the more basic reason for such erroneous thinking, however, is that people believe that there has to be some institution that gives ongoing credence and legitimacy to the Constitution amidst the rough-and-tumble and constant changes of politics. They want to believe in the Court even when it undermines the Constitution.

It’s time to readjust our thinking and restore the Supreme Court to the place and powers it was intended to have in our constitutional order—before it further damages the very Constitution that created it and extends the cultural erosion it has been a main cause of. This requires recovering the constitutionally based checks on the Court which long ago fell into desuetude, and the only realistic one now—when we have the right president—is not mere executive appointment but executive resistance.

(Photo credit: AP)