The following is part of a debate between Daniel Hemel and Christopher Sprigman over how progressives should react to the right-wing takeover of the judicial system as heralded by the seating of Supreme Court Justice Brett Kavanaugh.
The Kavanaugh confirmation presents a challenge for progressives like me who want to see the Supreme Court continue to play an influential role in American political life. While the justices are no doubt influenced by ideology, they generally strive to stay above petty party politics. Not Brett Kavanaugh—or, at least, not the Brett Kavanaugh who appeared before the Senate Judiciary Committee at the end of last month. “Revenge on behalf of the Clintons.” “What goes around comes around.” These are the words of a partisan warrior, not an ostensibly neutral jurist. They will continue to resonate in our memories as long as Justice Kavanaugh remains on the bench.
But while Kavanaugh’s words were potent, the institution that he joins is feeble. The court is, by design, the “least dangerous” branch, in Hamilton’s words. It lacks both the power of the sword and the power of the purse, and therefore must rely on the explicitly “political” branches—the executive and the legislature—to enforce its decisions. It therefore cannot speed too far ahead, or lag too far behind, the existing political consensus. Political scientist Robert Dahl got it right six decades ago when he wrote that “except for short-lived transitional periods … the Supreme Court is inevitably a part of the dominant national alliance,” and “in the absence of substantial agreement within the alliance, an attempt by the Court to make national policy is likely to lead to disaster.”
Nor should we want it any other way. The linchpin of democratic legitimacy is consent, and a tribunal of unelected judges who could dictate national policy without the consent of the electorate or the political branches would be an illegitimate institution in a democratic society. The Supreme Court cannot countermand the political branches unless the political branches acquiesce to its rulings. Historically they have, but only because historically the court has not cut loose from the dominant national alliance—at least, not for long.
Which is not to say that the court is an irrelevant institution. To the contrary, and notwithstanding its ultimate dependence on the political branches, the court still can serve a restraining function when the political branches stray too far from core constitutional commitments. It cannot “save a people from ruin,” as then–Harvard law professor James Bradley Thayer recognized at the end of the 19th century, but it can spur the political branches to reconsider decisions that disregard fundamental and widely shared values. In former Yale law professor Alexander Bickel’s oft-quoted words, the court can remind us of that “which may have been forgotten in the moment’s hue and cry.”
The court has not always performed this function of providing a “sober second thought” when fear and paranoia have intoxicated the political branches. But it often has. It is correct to mention—and lament—the court’s reprehensible decision in Korematsu v. United States, but we often forget that on the same day as Korematsu, the court ruled unanimously in Ex Parte Endo that the Roosevelt administration could not hold American citizens in military detention merely on account of their Japanese ancestry. We should remember the internment of Japanese Americans as a horrific episode in our country’s history, but we also should remember that it was that same court that brought that episode to an end.
Ex Parte Endo does not stand alone. From the 1866 decision in Ex Parte Milligan (which protected citizens’ access to civilian courts in wartime) to the 1971 decision allowing publication of the Pentagon Papers and the post-9/11 Guantánamo cases, the court—usually by bipartisan majorities—has served as a check on the other branches’ worst excesses. Not always, to be sure; the court’s signoff on President Trump’s third travel ban may go down in history as another instance in which judicial safeguards failed. Yet even in the travel-ban litigation, it was the failure of the first travel ban in court (albeit at one level below the Supreme) that prompted the president to pare back some of the most onerous restrictions.
Beyond its function as a check on jingoistic hysteria, the Supreme Court also at times has played a “representation-reinforcing” role, striking down laws that prevent racial and political minorities from participating effectively in the political process. For example, in the first half of the 20th century, the court invalidated state laws that excluded black Americans from voting in primaries. In the 1964 case Reynolds v. Sims, the court established the principle of “one person, one vote,” which led to the invalidation of state legislative districts with grossly unequal populations. Over the next several decades, the court repeatedly struck down state laws that precluded political minorities (Communists, socialists, and right-wingers alike) from gaining access to the ballot. Here, the court’s worst errors have resulted not from overreach but from its reluctance to go further on subjects such as partisan gerrymandering and voter identification. The principal problem with the court’s voting-rights jurisprudence has not been “too much constitutionalism,” but too little.
In addition to serving as a restraining force and a representation re-enforcer, the court has—on a few occasions—gotten a half step ahead of progressive social change. Brown is one example. To be sure, far too many school systems still are divided on racial lines, but court-ordered desegregation has had meaningful effects on educational attainment for black Americans in the places where it occurred. Lawrence v. Texas was largely symbolic, but the marriage-equality ruling a dozen years later in Obergefell v. Hodges was much more than symbolic for the tens of thousands of same-sex couples who have wed since June 2015 in states that previously banned their unions. Roe v. Wade may have been a disaster politically, but the pre-Roe status quo was even more of a disaster for the thousands of women who died due to back-alley abortions in the decades before the ruling.
True, the court also has slowed progressive change at various junctures. But the court can do no more than throw sand in the gears—it cannot bring the engine to a halt. Progressive reforms stalled at the beginning of the 20th century not primarily on account of the Lochner court but because progressives lost control of Congress and the presidency at the ballot box. The court interfered with FDR’s First New Deal but ultimately allowed the most important elements of the Second New Deal to take effect. More recently, the Roberts court made way for the key parts of the Affordable Care Act, and while it did impede the ACA’s Medicaid expansion, the chief obstacle to universal health care was not judicial opposition—it was the Republican victories in special and midterm elections in 2010.
And then there is Citizens United. A far harder case than critics on the left often acknowledge, it is a far less consequential one as well. The much more important impediment to meaningful campaign finance reform is the lack of political will for a robust public financing system. If such will ever coalesces, it is doubtful that the court can stop the popular juggernaut for long. In the past, it never has.
In sum, the court’s worst moments have been moments of weakness, not overexertions of strength. It will forever be the least dangerous branch, but that is no reason to enfeeble it further. Concededly, now-Justice Kavanaugh’s recent testimony leaves one to wonder whether he will supply the “sober second thought” that the court, in its finest moments, can provide. But an institution is more than any one individual, and moreover, we should be playing a long game here.
Part 1: Should Progressives Wage War on the Supreme Court?
Part 2: The Supreme Court Is a Historically Regressive and Presently Expendable Institution
Part 4: Three Plans for Saving Voters From a Right-Wing Activist Supreme Court
Part 5: Why Supreme Court Term Limits Won’t Work and What to Do Instead
One more thing
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