March 22, 2022 | Reading Time: 5 minutes
A professor of constitutional law asks: Is it time to consider ignoring the Supreme Court?
Starting a difficult conversation.
Editor’s note: The following first appeared in Dorf on Law.
For far too long the United States Supreme Court has unduly interfered in our local, regional, and national politics. The Justices on all sides of our political divides consistently veto important state and federal laws without any persuasive basis in constitutional text or history. This overreaching is not a new phenomenon but goes back almost two centuries. I detailed that overreaching in my book “Supreme Myths,” and I have been a strong Supreme Court critic through liberal, moderate, and conservative times.
Although numerous proposals have been advanced by legal scholars and politicians to deal with a Court that is much too involved in our politics and elections, none will be adopted in the near future, as evidenced by President Biden’s Supreme Court Reform Commission, which failed to agree on a single major idea. Yet, we must do something to rebalance the overly intrusive role unelected, life-tenured judges play in our country.
There is one possible reform which, though rarely discussed, might work and which also has a solid foundation in American history. Perhaps it is time for the people and our elected leaders to threaten to ignore the Court when it intrudes into governmental policy where it simply does not belong. Although this suggestion sounds radical, it has a strong democratic pedigree and might be the only tool available to the American people to weaken our dysfunctional highest Court.
Even before the American people voted for the United States Constitution, a writer with the pen name Brutus wrote about the likely dangers unelected, life-tenured Supreme Court Justices with the power to strike down laws would pose for the new government. He wrote the following:
There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.
Alexander Hamilton responded to these concerns in Federalist No 78 by saying the soon-to-be justices had neither “purse nor sword” and their power would depend on the people’s trust. Also, the Supreme Court “may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” He also said the Court would not declare laws unconstitutional unless there was an “irreconcilable variance” between a statute and the Constitution. Hamilton, like most of the founders, believed that judicial review was a tool for judges to employ infrequently and only upon a strong showing by the plaintiff of clear constitutional error.
Brutus was right and Hamilton was wrong. Throughout American history, the Supreme Court has issued country-changing decisions striking down state and federal laws that no one with a straight face could reasonably argue were at an “irreconcilable variance” with the Constitution or were the product of judgment not will. The list of such cases is much too long for this essay, but here are representative and important examples of judicial overreaching.
There is one possible reform which, though rarely discussed, might work and which also has a solid foundation in American history. Perhaps it is time for the people and our elected leaders to threaten to ignore the court when it intrudes into governmental policy where it simply does not belong. Although this suggestion sounds radical, it has a strong democratic pedigree and might be the only tool available to the American people to weaken our dysfunctional highest court.
In 1857, the Court said Congress could not end slavery in the territories despite Congress having the express power in Article IV of the Constitution to make all rules and regulations for the territories. That decision not only distorted clear constitutional text but also played a role in leading the country into the Civil War.
In 1883, the Court did not allow Congress to prohibit racial discrimination in places of public accommodations, leading to almost a century of racial segregation. Between 1900 and 1935, the Court struck down numerous state and federal laws regulating the economy and the workplace despite little support from text or history. More recently, the Court has tried to settle our national debates over abortion, guns, and affirmative action quite unsuccessfully, as those issues have haunted the lower courts for over 50 years.
The Court has also interfered in our elections in numerous harmful ways by striking down reasonable efforts to curb the corrosive effect of money on politics and by declaring unconstitutional a key section of the Voting Rights Act and then narrowly interpreting the remaining part of the law. None of those decisions were justifiable as a matter of text or history.
Why would any country delegate to elite lawyers decision-making authority over controversial and difficult issues such as gun control, abortion, and affirmative action, to name just a few contentious questions? We can distinguish those kinds of public policy disputes from cases involving double jeopardy, self-incrimination, unreasonable searches and seizures, and related issues that directly effect criminal defendants, juries, evidence, and courtrooms. Those issues are appropriate for the highest court in the land. But judges simply do not have any similar expertise on questions like abortion and gun control that could plausibly explain why they should have a roving veto power over such difficult controversies.
The late Justice Antonin Scalia argued in a dissent in an abortion case that value judgments are to be voted on by the people, not dictated by unelected, life-tenured judges. Unfortunately, Scalia did not heed his own advice, as he voted to strike down well over 100 laws during his time on the bench, almost none of which were at an “irreconcilable variance” with the Constitution. In fact, no Supreme Court Justice in modern times has consistently deferred to state and federal laws under a clear error standard.
Why would any country delegate to elite lawyers decision-making authority over controversial and difficult issues such as gun control, abortion, and affirmative action, to name just a few contentious questions? … Judges simply do not have any similar expertise on questions like abortion and gun control that could plausibly explain why they should have a roving veto power over such difficult controversies.
Maybe it is time for the people or the President to stop acceding to Supreme Court decisions striking down laws unless the justices make a showing of clear constitutional error. For example, next year the Court is likely to end all affirmative action. If universities refuse to comply and the Biden Administration sides with the universities, what is the Court going to do? It has neither purse nor sword. Similarly a Blue State might decide to not abide by a Court decision striking down much-needed gun reform. Or if the Court retains some parts of Roe and Casey this June, maybe red states ignore that holding (Texas already has).
This strategy might cause people to remember that the Governor of Arkansas in the 1950’s claimed that Brown v. Board of Education didn’t apply to his state, leading the Court to emphatically say that it did and President Eisenhower to call in the National Guard. The specter of such events justifiably may make folks nervous about disobeying the Court.
But, as Hamilton observed, the system is built such that the Executive has the discretion to refuse to enforce Court decisions. In the words of Professor Chris Sprigman, “Hamilton argued the court’s utter dependence on the executive branch to enforce its judgments meant the court was no real threat to liberty. But for that argument to make sense it must also be true that, at least in cases where a court ruling provokes some disquiet, the president will make an independent assessment before enforcing it.” Just so.
The Court has become a focal point of America’s current dysfunction. It intrudes in areas of public policy like gun control and abortion, and the Justices have warped our elections and our politics. Finally, Brown is textually justifiable under the Fourteenth Amendment and stands for a principle we should, nay we must, all share. That is not true for most of the Court’s constitutional law cases, which involve issues most reasonable people can disagree about. In such circumstances, the Court should stand down. But it hasn’t and it won’t, absent some major changes.
The Court should be allowed to make rules for courtrooms and criminal trials or where there is clear constitutional error. But in complicated areas of public policy like abortion, affirmative action, and gun control, the Court needs desperate reform and we are running out of time and options. Perhaps it is time to consider ignoring the United States Supreme Court when it unduly burdens and interferes with our democracy without first showing an “irreconcilable variance” between a law and clear constitutional text or largely undisputed history behind the text.
How much worse can it get?