By Erin Hawley
Friday, October 21, 2016
In the second presidential debate, Hillary Clinton
described her ideal Supreme Court Justice: someone who “understands the way the
world really works, who ha[s] real life experiences.” During Wednesday’s final
debate, she called for a Supreme Court that would “represent all of us.”
But neither time did she say a word about commitment to
the Constitution or to the text of a statute.
Clinton’s unapologetic call for judicial activism should
be frightening. But truth be told, liberals are not the only ones advocating
for “judicial engagement.” Debates over religious liberty, marriage, and
abortion suggest that both right and left have abandoned the idea of judicial
restraint, thus forgetting the Constitution our Founders envisioned.
The Supreme Court
Wasn’t Meant to Be This Powerful
The Supreme Court was not always so central to American
life: Alexander Hamilton famously described the federal judiciary as the “least
dangerous” branch of government. The Constitution itself says surprisingly
little about the court. Article III declares that “the judicial power of the
United States shall be vested in one Supreme Court and in such inferior Courts
as the Congress from time to time ordain and establish.” What “judicial power”
is, however, and how it works is unspecified.
At the country’s inception, Hamilton’s humbler view of
the court’s role was entirely accurate. The Supreme Court was a rather boring
institution, and was held in relatively low esteem. It heard no cases its first
two terms, and only 50 cases during its first 10 years. The Justices were
required to “ride circuit,” spending approximately half the year trekking
across the country by horse, stagecoach, and riverboat to sit as federal trial
judges. This arduous duty led many notables, including Hamilton himself, to
turn the job down.
All that changed with Marbury
v. Madison, the famous judicial review case. Chief Justice Marshall concluded
that “the judicial power” referred to by Article III of the Constitution
included the power to review a statute and—this was critical—declare it void if contrary to the
Constitution.
Marshall’s conclusions are by no means obvious from the
text of the document itself. Nevertheless, Marshall’s notion of judicial review
set the Supreme Court on the road to stardom. It empowered the court to sit as
a review board on national and state legislation—a role the court fully
embraced once Congress gave it the time.
The Federal Court System Has Only Grown With Time
Along with Marbury,
the elimination of the Supreme Court’s mandatory docket and creation of the
federal courts of appeals thrust the judiciary into the limelight. In its first
century, the court’s primary role was to correct mundane legal and factual
errors made by the federal trial courts. The courts of appeal did not yet
exist, and the Supreme Court was required to review nearly every civil case in
which its views were sought.
As the Reconstruction Congress enacted more regulatory
legislation, the court’s docket became unmanageable. It swelled to over 1200
cases in 1880. The overloaded docket meant that cases received little attention
and decisions took years.
In 1891, Congress created the federal courts of appeal to
relieve some of the workload, and in so doing, gave the Supreme Court the time
and opportunity to put their Marbury
power into full effect. By 1925, Congress had made the vast majority of the
Supreme Court’s docket discretionary. That meant the Supreme Court could
largely set its own agenda by choosing which cases it would hear. The court
would no longer sit primarily to correct run-of-the-mill errors. Instead, it
decided important questions of federal law. Perhaps not surprisingly, the court
has spent much of its time striking down congressional and state laws it
regards unconstitutional.
The Supreme
Court’s Rise to Power
To say the Supreme Court has grown in power since the
Constitution’s framing hardly does justice to the transformation. Today one can
only quote Hamilton’s assurances about the “least dangerous branch” ironically.
The change is not all loss. On the upside, judicial
review acts as a check on the elected branches. The Supreme Court can ensure
that governmental power remains limited, and resist incursions on the
Constitution’s structure and liberties by the other branches.
But the power claimed by the current judiciary is
dangerous, too. The problem, of course, is that the judiciary is unelected and
thus unaccountable. The counter-majoritarian dilemma made famous by Alexander
Bickel is very real. When the federal courts strike down a law of Congress,
they invalidate the decision made by the people’s representatives.
This is all well and fine when federal courts stick to the
text and original meaning of the Constitution and laws they are interpreting.
But when courts stray beyond those sources and impose their own values and
“understandings,” they take the fundamental freedom of self-governance away
from the people.
Thus, any call for “judicial engagement” should carefully
confine the judicial role to interpreting statutes, not making them. The
prospect of an unelected committee of nine deciding cases—based on their
understanding of “how the world works”—should be a non-starter.
There is no doubt that today’s Supreme Court is a
political star. But boring would be better.
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