The Brooklyn Rail

MARCH 2022

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MARCH 2022 Issue

The Most Dangerous Branch?

Stephen Breyer
The Authority of the Court and the Perils of Politics Justice
(Harvard University Press, 2021)
Ian Millhiser
The Agenda: How A Republican Supreme Court Is Reshaping America
(Columbia Global Reports , 2021)

In his pre-retirement plaintive wail for institutional relevance, The Authority of the Court and the Perils of Politics, Justice Stephen Breyer laments that education is failing in its task to engender in the general populace an understanding, love, and respect for the rule of law and the pronouncements of the law’s final arbiters, the Supreme Court. But to mangle Shakespeare, alas dear Breyer, the fault lies not in our stars but in yourselves. As a high school teacher of American history and the civics you preach, I am faced with the following problem—the Supreme Court has given us educators very little to work with, both historically and currently, in order to promote its systemic virtues. How do you expect the institution to maintain its public reputation when behind the fig leaf of legal form and constitutionalism it acts in nakedly political ways that disenfranchise citizens, undermine their health and well-being, and prop up a self-interested oligarchy? Breyer “hope[s] and expect[s] that the Court will retain its authority … but that authority, like the rule of law, depends on trust, a trust that the Court is guided by legal principle, not politics.” Trust is earned. It cannot be crammed into the heads of schoolchildren when one of the Court’s most well-meaning and erudite members apparently is blind to the hypocrisy within the body he cherishes.

I will, however, heed Justice Breyer’s call to educate about the Supreme Court, and explain why trusting it to act apolitically and secure the blessings of liberty was never a smart bet and is presently a dangerous impossibility. The authors of the Constitution and its supporting explanatory musings, the Federalist Papers, were plainly nervous about excesses of democracy. James Madison famously warned in Federalist No. 10 of the need to guard against “the tyranny of the majority.” (Interestingly, later in life Madison came around to trusting the people more and commercial elites less in the functioning of government, see Robert Dahl’s How Democratic is the American Constitution (2003).) Alexander Hamilton, in Federalist No. 78, argued that the judiciary was the most effective safeguard against runaway majoritarian impulses to dispense with the rule of law and trample on individual rights: “In a monarchy [the judiciary] is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws.”

Hamilton, either mistakenly or recklessly, wasn’t particularly worried about abuses or political activity of the judiciary itself. He called it the “least dangerous to the political rights of the Constitution.” The Legislature has the power to make rules governing behavior and the power to tax us; the Executive the power of “the sword” and the granting of honors. All the judiciary has is the power of its judgment. And judgments, unlike guns and money, are more easily ignored. What is convoluted about Hamilton’s argument for giving the Supreme Court ultimate power to interpret the Constitution and strike down the will of the duly elected Legislature is that he posited that courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The Constitution, through the rabbinical interpretive qualities of judges, is supposed to represent the true will of the people since they ratified the document democratically, whereas their representatives are one step removed from vox populi. Maybe that kind of flew in 1789 when that majority (concededly, made up of white and largely-propertied men) was a living, breathing entity, but the folks voting on the Constitution have been dead for over 200 years. And even if we should care what they thought, it’s bizarre to imagine that the Supreme Court is capable of holding a kind of séance to channel the will of that long dead majority.

Nowhere in the Constitution is the Supreme Court explicitly granted the authority to engage in acts of judicial review—the voiding of legislation as beyond the strictures of constitutional governmental authority. The dirty historical secret about the Supreme Court is that the very power of judicial review was forged as a product of political controversy. After their landslide defeat in the election of 1800, President Adams and the Federalists expanded and stocked the judiciary with—horror of horrors—Federalists, to check incoming Jeffersonian power. In the judicial test of that maneuver, Marbury v. Madison, Chief Justice John Marshall shrewdly upheld Jefferson’s order to not seat certain federal judges whose commissions hadn’t been delivered—but did so by declaring part of the Judiciary Act of 1789 unconstitutional and declaring that it was the Supreme Court that got to decide the meaning of the Constitution. Jefferson was left holding a Federalist bag of judicial power, because to deny it in a case he won would have been unseemly. Marshall’s gambit became precedent number one and gave the Court the power it wields to this day. Given that the very origin of judicial review is rooted in a political fight, we shouldn’t be shocked when it acts as a political body.

When Justice Breyer pointedly refuses to delve into whether the Court has “itself become politically partisan” he forfeits the grounds to argue why it should have the decisive word on constitutional interpretation. He claims that jurisprudential difference, not political ones, account for interpretive disagreements. Justice Breyer needs to descend from planet Brahmin and inhabit planet Earth. Supreme Court decisions on important issues of governmental power, economic power, individual rights, and equal protection have always come down to the personal and political predilections of the individual justices. For most of its history, given the Court’s ruling elite cast, its pronouncements have served as a conservative or reactionary force in favor of entrenched economic, racial, and anti-democratic power. Breyer naturally trots out Brown v. Board of Education as the example of the Court acting to uphold the Constitution in the face of political opposition in a way that catalyzed social change. The period of the mid-1950s to the late 1970s is an exception to the Court’s anti-progressive history, and was effectively a short-lived affirmation of the social and political movements of the period. From the time of Reconstruction till Brown, the Court gutted the Privileges and Immunities Clause of the fourteenth Amendment (The Slaughterhouse Cases [1873]); defanged the Reconstruction Era Civil Rights Acts by negating their application to private entities (Civil Rights Cases [1883]); and legalized Jim Crow (Plessey v. Ferguson [1896]). Brown itself hasn’t been an unvarnished success, as our schools are still highly segregated nearly seventy years later and the ruling was repeatedly denuded by Supreme Court decisions undermining integration and access to equal education. (See Milliken v. Bradley [1974]; San Antonio v. Rodriguez [1973]). Even a well-intentioned Court interpreting the Constitution in a rights-expanding pro-democratic manner cannot for long stem a tide of the politics of elite power preservation. (For a realistic view of the limitations of the Court’s progressive power, see Gerald Rosenberg’s The Hollow Hope: Can Courts Bring About Social Change? [1991]).

But the Court’s pronouncements can be a powerful tool in legitimizing an anti-democratic conservative agenda under a veneer of law and constitutional authority. Furthermore, given Congress’s diminished ability to enact ordinary legislation or to overrule Court decisions, the Supreme Court has become, according to Ian Millhiser in The Agenda: How A Republican Supreme Court Is Reshaping America, “the most important policy-making body in the United States.” Millhiser skillfully unpacks the revanchist danger posed by the current six-three right-wing Supreme Court majority and lays to rest any possible notion that the current Supreme Court is anything but a nakedly political entity. The danger is not just on matters of substantive rights that occupy the public conscience like abortion, freedom from discrimination, and affirmative action in education. Millhiser argues that this Court will “fundamentally alter the structure of the American system of government, and who is allowed to exercise power in that system.” Its recent and foreshadowed future rulings represent no less than a hijacking of democracy.

Millhiser identifies four areas where the current Court is carrying out the project of promoting an anti-majoritarian political process that inures to the benefit of entrenched power: curbing voting rights, dismantling the administrative state, the triumph of freedom of religion, and undermining the right to sue. The Court’s recent pronouncements on voting put it squarely in the camp of states’ rights enthusiasts yearning to limit the franchise, particularly of people of color. In Shelby County v. Holder (2013) the Court gutted Section 5 of the Voting Rights Act (VRA) after a supermajority of Congress had reauthorized its preclearance provisions; then in Abbott v. Perez (2018) it made it very difficult to prove racial intent under Section 2 of the VRA in order to vitiate a restrictive state voting law; and in Rucho v. Common Cause (2019) the Court abdicated its responsibility to police the most nakedly anti-democratic gerrymandering. The Court’s legislative and constitutional interpretations in this area served to undercut laws designed to protect voting rights and allow restrictions on those rights to run rampant without scrutiny or intervention.

That part of Millhiser’s indictment is no secret to the discerning public. Perhaps the even more invidious, and certainly the most judicially hypocritical part of the conservative project, is the right-wing justices’ attacks on the administrative state—and thus the ability of the government to protect the citizenry. In 1984, in the midst of the Reagan deregulation crusade, the Court in Chevron v. NRDC adopted the principle that the rules adopted by administrative agencies, like the EPA, were entitled to “judicial deference.” Conservatives like Justice Antonin Scalia and Ken Starr adopted and defended the ruling as being consistent with principles of judicial humility—the EPA has expertise about the technicalities of environmental regulation that an appellate judge has no basis to supplant. The political expediency of the position in the Reagan era was obvious, as the Executive branch was filled with government dismantlers. Fast-forward to the current Court where Justices Neil Gorsuch and Clarence Thomas openly question “Chevron deference” and decry agency expertise as unbridled undemocratic power that needs to be reined in by, you guessed it, the Supreme Court, ironically the least democratic branch of the government. Not a very judicially humble position. The heightened scrutiny of the actions of federal agencies will undermine the ability of professionals and experts—who come in with a duly elected president and serve at the pleasure of someone we voted for—to use the regulatory state to promote the general welfare. In this way the Republican judicial majority will undercut the functions of government much the way the early twentieth-century Supreme Court did before it reversed itself mid-New Deal in the face of Roosevelt’s electoral landslide and Court-packing threat. The recent six-three grant of a stay of the Occupational Safety and Hazard Administration’s (OSHA) regulation requiring employees in larger private companies be vaccinated or tested proves Millhiser’s point; when it suits the politics of the Justices, they are willing to substitute their judgment for those whom we have elected to enforce the law. The Court is shifting power to itself.

There are a variety of institutional reforms on the table to mitigate the runaway power of the Court: limiting the Justices’ terms of office, adding Justices, staggering their terms, having cases decided by panels of a larger Court, and periodically rotating judges. These proposals would help mitigate the untrammeled authority of the nine current lifers (exercised by the six conservatives), but the likelihood of implementation is virtually non-existent. None of these proposals would alter the power the Court uses to impose its vision of American government and society, the exercise of judicial review. Why should the Court have exclusive papal rights to determine the meaning of our civic religion? The only way to truly guard against the Court’s imperiousness is to take the exclusive final word interpretive power of constitutional meaning away from a single Sanhedrin. We need to become “Constitutional Protestants” and engage in our own acts of constitutional interpretation, leaving the Court to be one voice—albeit an important and potentially authoritative one—in a community conversation about constitutional meaning. Rather than, as Justice Breyer recommends, we just learn to trust the Court, we should empower the political branches to overturn its decisions when the Court goes off the rails and make the views of the larger body politic on questions of constitutional meaning actually matter. Finding a way to have real democratic politics weigh in on constitutional interpretation would humble the excesses of judicial arrogance and discourage politically motivated interpretive shifts. The real check on judicial power must be people power.


Harry Feder

Harry Feder is a former attorney. He clerked for the Hon. Stewart G. Pollock of the Supreme Court of New Jersey.


The Brooklyn Rail

MARCH 2022

All Issues