Should a self-respecting democracy have a Supreme Court like ours, with the power to overturn democratic legislation? More and more progressive observers are not so sure. But one thing is clear: we need a more mature relationship with the Court and, through it, a more open and democratic relation to the Constitution.
Polls consistently find that the Court is the best-respected branch of government, well ahead of Congress and the presidency. A wave of critics, though, has been denouncing it as anti-democratic and regressive. Erwin Chemerinsky, dean of the U.C. Irvine law school and a prominent constitutional lawyer and scholar, is about to publish a book called The Case Against the Supreme Court, arguing that the Men in Black (more recently, Persons in Black) have done more harm than good on key issues like race, economic fairness, and preventing abuse of government power. Ian Millhiser, a constitutional analyst at the liberal Center for American Progress, will publish a book by the same title next March. Further to the left, Jacobin has published a set of forceful attacks, summarized in Rob Hunter’s recent conclusion that “judicial interference with democracy” should become “unthinkable.”
The pendulum of anti-Court criticism has swung from left to right to left again in the last century. Progressives railed against a conservative, pro-market Court until Franklin Roosevelt finally knocked it back on its heels during the New Deal. In the 1960s, billboards in conservative parts of the country urged, “Impeach Earl Warren,” the liberal chief justice. Now, with the Court knocking out campaign finance regulation, parts of Obamacare, and the Voting Rights Act—plus menacing affirmative action, climate regulation, and labor rights—the left is remembering what it doesn’t like about letting justices review democratic legislation.
Apart from its ideological switches, the Supreme Court has two persistent anti-democratic features that might give a self-respecting democracy pause. First is that, although it is not always a conservative institution, it is always an elite one. Justices are picked from and mix in the highest echelons of the American professions. Tocqueville called professionals, especially lawyers, the American version of aristocracy, and the Supreme Court represents the aristocratic branch of the Constitution. This makes sense when they are deciding technical legal questions, but it raises more doubts when a democracy assigns a professional elite to work out the meaning of liberty and equality, or the right relationship between the federal government and the states.
The Court’s other anti-democratic feature is connected with its status as the best-respected branch of government. Its power, more than that of the presidency and much more than Congress’s, is symbolic, even mystical. The robes and the marble temple of the Supreme Court, the fact that oral arguments aren’t broadcast or photographed, all add to the mystique. They make the Court an oracular interpreter of the 225-year-old Constitution that serves as the most basic American law.
For this reason, it’s the rare radical democrat who will denounce the Supreme Court right down the line. Whatever they think of the Court’s other decisions, progressives will generally celebrate without reservation on the all-but-certain day when the Court established marriage equality nationwide. Most Americans think of the Constitution as being ultimately on their side, and identify the Constitution with the Supreme Court. When they agree with the Court’s decision, they tend to think the country has been called back to its best self. When they disagree, they tend to think there has been a regrettable, maybe terrible, mistake.
The perverse thing is that, when a country puts questions of basic principle into the hands of just a few interpreters, and gives those interpreters life tenure, the issue becomes less “What does equality mean to Americans?” than “What does equality mean to Justice Kennedy?” That is not a healthy question for democratic citizens to ask about their basic values. It is would fit a monarchy better: “What is the king feeling today?”
Americans’ willingness to accept the Supreme Court’s mystical role is partly a symptom of disappointment in our own democratic capacities. Congress is the most directly representative body of the federal government, and almost no one sees it as having principled authority or moral charisma. Hoping that the Supreme Court will make us better than we can otherwise be, better than our own representative institutions, is neither self-respecting nor very likely to succeed.
We shouldn’t let the Court off the hook, though. The problem isn’t just that we date judicial review because we don’t think we deserve better. The Court maintains its own mystical charisma, especially by keeping out cameras, and, in recent decades, it has degraded the other institutions by clearing a broad path for big money to enter politics. It keeps itself special, and its decisions sometimes make other branches of government even more disappointing.
Big arguments about whether we should even have a Supreme Court with the power of judicial review are interesting, but there are equally important and more practical questions about what to do with the Court we have. Chemerinsky makes a couple of excellent practical suggestions, which others have also pressed.
First, opening the Court to cameras would let people see the justices for what they are: smart and well-trained human beings wrangling over hard, charged questions with knotty legal materials. It might drain the sense of the Court as an oracle, and bring home the reality that this is, basically, a very high-level committee of elite lawyers. That would open the question of which decisions we want such a committee to decide.
Second, and more radical, would be reconfiguring the Court. Chemerinsky suggests replacing life tenure with 18-year terms, meaning a new seat would open up every two years, and every president would get an equal number of appointments. This would make the Court’s relationship to the larger democracy less arbitrary. (Nixon appointed four justices in his first two years; Jimmy Carter got none.) Even more important, though, it would end the irritating and distorting tradition of the swing justice, whose temperamental sense of what justice requires matters more than either James Madison’s words or a majority of Americans’ considered views.
An even more radical step would be to replace the nine-person Court with a pool of senior and respected federal judges who would serve on rotating panels. A decision of such a panel would still be the last word on the question, but the judgments would reflect more of an average of legal expertise and seasoned judgment than the particular convictions of nine life-tenured justices.
The real advantage of these reforms is that they would be the beginning of an experiment in living with a less mystified Supreme Court and a more realistic idea of the relationship between judging and politics. In light of that experiment, future Americans could decide which questions they should trust to committees of lawyers and which they should decide more directly. Where democratic institutions are failing, as Congress is now, they might even ask how to revive them, rather than hope for a saving decision from the Court. That would be a step toward building a democracy that could respect itself—and deserve the respect.