“If you have five votes here, you can do anything,” — Justice William J. Brennan Jr.
During the Kavanaugh hearings, pundits and journalists mused whether the circus around his nomination hearings might be leading to a crisis of legitimacy on the Supreme Court.
Notably, these musings mostly came from the left and those who opposed Kavanaugh ideologically. Their very utterance was an instance of further politicizing and de-legitimizing of the judicial branch. The Supreme Court was intended by the founders to remain “above the fray.” But the political tit-for-tat around increasingly divisive confirmation hearings is just the tip of the iceberg of a legitimacy crisis that has been brewing for much longer.
David Kaplan’s new book, The Most Dangerous Branch, is a deep dive into the history and personalities that have turned the Supreme Court into the hyper-politicized and self-aggrandizing institution it is today. He takes readers into the heart of the “Marble Palace,” where the nine black-robed justices have sat enthroned since 1935, deciding some of the most controversial issues in American life.
How did we get to a place where nine individuals hold so much power — where Supreme Court Justices are viewed as demigods?
Against the narrative of “Supreme Court as Jedi High Council” comes Kaplan’s revealing and occasionally unflattering portrait of the Trump Court.
The Supreme Court is not and ought not be our only hope, he says.
The book provides a fascinating glimpse into the personalities and egos of judges — both those who have ultimately been confirmed and those whose enthusiasm and jockeying for a nomination ended up disqualifying them. It’s a sobering reminder that the justices on the Supreme Court are not deities, but merely lawyers — and humans at that.
Judicial Restraint for Thee, but Not For Me
Congress was supposed to make the laws, and the courts were supposed to interpret them. The difference is subtle, and the idea of “judicial restraint versus judicial activism” has come to characterize the debate. An activist judiciary overrides Congress’s will in interpreting laws so as to nullify or contradict them. A restrained judiciary leaves laws on the books unless they egregiously violate the Constitution.
Justice Gorsuch made a case for judicial restraint back in 2005 in a National Review article titled “Liberals’N’Lawsuits,” which pointed out the danger of letting the courts decide key social issues.
But Kaplan thinks Gorsuch is a hypocrite:
“[W]hy did Gorsuch see this as a liberal phenomenon? His piece mentioned “liberals” eight times and “conservatives” not once. Weren’t conservatives likewise “addicted to the courtroom,” “relying on judges and lawyers” to try to overturn legislative “compromises” that had been reached by “elected leaders” on such tempestuous matters as voting rights and gun control?”
On the other side, Reason Magazine’s Damon Root and others in the “libertarian legal movement” have actually made the case for an activist judiciary that overrules government overreach into the lives of individuals.
Perhaps there is an underlying principle behind the application of one standard over another, but based on the increasing number of 5–4 decisions along partisan lines, it appears that the standard often flips to suit the political proclivities of the majority on the bench.
Kaplan says this has a corrosive effect on the Republic. It enfeebles Congress and emboldens the Supreme Court to the point of arrogance. The judiciary can be added to the list that includes the administrative agencies of those who enable Congressional laziness.
Alexander Hamilton expected the judiciary to be the “least dangerous branch,” possessing neither the power of the sword (like the executive) nor the purse (like Congress), but merely judgment. That judgment, however, has turned out to be a powerful force.
Kaplan finds the roots of an overinflated judicial branch in one of the earliest Supreme Court judgments — Marbury v. Madison — enshrining judicial review, i.e., the ability of the courts to declare laws unconstitutional. He reminds us that this power appears nowhere in the Constitution before tracing its expanding scope through the 1800s and the Lochner era — in which the Court upheld economic liberties over-and-against regulations passed by state legislatures — to the formal discovery of the right of substantive due process.
Kaplan notes that we have to distinguish between our personal views on an issue and the rightfulness of the court deciding to overrule a majority in the legislature.
In declaring abortion to be a “fundamental right” under the Constitution, for example, the Supreme Court solidified its usurpation of the legislative function and short-circuited the public debate playing out in legislatures.
Later, the right would get its “revenge” in a series of cases beginning with Bush v. Gore — decided along strictly partisan lines. In that case, it was liberals advocating judicial restraint and conservatives “trampling the independence of states.”
Kaplan believes that one’s opinion of a Supreme Court decision should be based on more than whether you agree or disagree with the outcome of the case. He has done us all a service by documenting the arbitrary nature of many decisions the court makes, and the danger it poses to a balance of powers.
Soon, the Supreme Court will be issuing a decision in a case about partisan gerrymandering. The question before them is whether unfair district lines infringe a fundamental, by making many votes count less than they otherwise would.
Kaplan joined me for the full hour to discuss this an other upcoming Supreme Court cases through the lens of his book and the humans (all too human) who make up the “Trump Court.”
Is judicial activism really just whatever the other guy does? Find out, on the show of ideas, not attitude:
Making Congress Do Its Job, March 2019
Do the Unborn Have Rights? Oct. 2009