Worries over excessive judicial power is tilting at windmills
The judicial branch follows the election returns
The New York Times Magazine today features an article “A Supreme Dilemma,” by Emily Bazelon. The article worries, among other things, about excessive judicial power that handicaps democracy.
The worry is misconceived on at least two counts.
It assumes that the legitimacy of government rests on popular consensus. Wrong! The end of civil society, the end of government is justice, not majority rule. And justice is optimized when all persons have a fair opportunity to develop their faculties and pursue their ambitions free from domestic predation or foreign aggression—the liberty to march to their own drummers.
Thomas Jefferson elaborated in his Notes on Virginia, “An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one should transcend their legal limits, without being effectually checked and restrained by the others.” The entire purpose of a constitution is to arrest not unleash majority rule by endowing an independent judiciary to review and void actions of the legislative or executive branches.
In championing the Bill of Rights, James Madison, father of the Constitution, amplified:
“If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.”
The article also stumbles in raising an imaginary specter of a too powerful judiciary. It is the least dangerous branch. Justices wield neither the sword nor the purse, Alexander Hamilton instructed in Federalist 78.
Judicial power has never and will never subvert the postulate of majority rule. In the long run, the Court’s constitutional interpretations align with public sentiment. Over a century ago, Peter Finley Dunne’s Mr. Dooley shrewdly observed, “no matter whether the constitution follows the flag or not, the Supreme Court follows the election returns.” President Franklin Roosevelt’s court-packing plan capsized, but his trouncing Alf Landon at the 1936 presidential elections concentrated the minds of the Justices wonderfully on accommodating FDR’s New Deal. Freedom of contract precedents began to fall like ten pins without a single change in the Constitution’s text.
Justice Benjamin Cardozo understood the influence of prevailing orthodoxies on the judicial process in observing: “The great tides and currents that engulf the rest of men do not turn aside in their course and pass the judges by.” Nothing changed but public sentiments between the white supremacist ruling of the United States Supreme Court in Plessy v. Ferguson (1896) and the celebration of color-blindness in Brown v. Board of Education (1954). Ditto in contrasting the 1873 ruling in Bradwell v. Illinois declaring the proper places for women was in the kitchen and bedroom and the 1995 ruling in United States v. Virginia requiring the admissions of women at military academies.
Further, the article overlooked the amendment process to defeat unpopular Supreme Court rulings, for example, the Fourteenth Amendment conferring citizenship on persons born in the United States, the Income Tax Amendment, and the 18-year-old Voting Rights Amendment. The only part of the Constitution that cannot be amended is equal suffrage of the States in the United States Senate.
I am far from apotheosizing the Supreme Court. I criticize the Justices and decisions regularly. Our system of justice is conspicuously imperfect. But it superior to all the alternatives that have been attempted or conceived. Clipping judicial power is invariably a cure worse than the disease. No need to tilt at windmills.