The idea that government policymaking requires compromise and extensive debate is currently fairly unpopular. For one, a growing number of voters continue to elevate increasingly extreme candidates for office in hopes that this new candidate could be the change for which they have been searching. This constant pressure on candidates for office to follow increasingly polarized positions has led to an untenable situation whereby some expect their “morally righteous” preferred policies to be enshrined into the law. To them, the only thing keeping their policy from being enacted is the opposition party, rather than the possibility that this position is not popular with the broader public. In essence, the opposing party becomes the enemy, an enemy that must be leveled. In a functioning democratic society of 330 million people, this focus on ideological orthodoxy cannot continue.
It is highly unlikely that the broader public has a binary view of difficult policy matters. A functioning democracy requires the constant push-and-pull within the legislative branch to ensure that a diverse population is effectively represented.
Over the last 100 years or so, political party elites have adopted alternative means of creating public policy. Rather than waiting for the Congress to address tough decisions, party elites have instead pushed this responsibility to the other branches of government, more clearly pronounced in the Supreme Court.
As Professor Allan Ides describes it, “the judiciary and its attendant power of judicial review are simply part of the anti-democratic constitutional arsenal.” To be sure, unpopular judicial decisions have been handed down since the founding of this nation. During the early progressive era, hostile courts struck down legislation that was presumed unconstitutional under the judicial philosophies of the time. One of the first major responses to perceived judicial activism came from President Franklin Delano Roosevelt (“Roosevelt”). Roosevelt threatened to pack the Supreme Court in order to ensure that his preferred policies went undisturbed. This action led to a recent history of legal rulings that appear to have politicized the judiciary. Since then, there has been a litigation explosion that has forced more judges and increasingly fewer lawmakers to address hard questions; this has created what is sometimes referred to as a “juristocracy.”
Roosevelt and the New Deal’s Impact on the Court
Roosevelt is often credited for his policies and leadership during the Great Depression and World War II. Among his achievements were the New Deal programs that sought unprecedented government intervention into the economy. The efficacy of these programs has long been subject to debate, but the long-standing constitutional impact is undoubtedly still with us.
Prior to the New Deal programs, most Americans did not expect major intervention from the government, let alone the federal government. Due to Roosevelt’s popular messaging during challenging times, voters gave Democrats huge majorities in the House of Representatives and the Senate. These majorities granted the Executive Branch powers that were once unimaginable, which led to disputes in the judicial branch. One such example is the landmark Supreme Court case, Wickard v. Filburn. Wickard held that Congress could regulate wholly intrastate, non-commercial activity if that activity, in the aggregate, has a substantial effect on interstate commerce.
Initially, the Supreme Court overturned a number of the New Deal programs declaring them unconstitutional; unsurprisingly, this perceived judicial intervention irked the Roosevelt Administration and voters. After some years, President Roosevelt became so flustered that he introduced measures to curb the authority of the Supreme Court, such measures were referred to as “court-packing.” Court-packing was an attempt by President Roosevelt to appoint new justices to the Supreme Court in the hopes of minimizing his opponents influence on the court. Court-packing, however, was politically challenged by even some of President Roosevelt’s Democratic colleagues. It is believed by some that Roosevelt’s continued threats to the institution and growing Democratic majorities presented a clear danger to the Court; they believe that, in turn, Justice Owen Roberts felt pressured to flip his vote in favor of the New Deal programs, ensuring the Court’s backing of these programs. Political pressure on the courts continued on into the 1950s and 60s.
The Warren Court and Civil Liberties
No serious political analyst truly believes that the Supreme Court is immune to politics. In fact, some scholars contend that the Civil Rights Movement played a role in the Court’s decision-making surrounding civil liberties. With the historical backdrop of the 1950s and 60s in mind, the Court slowly changed its doctrinal approach to encompass a more current understanding of the first 15 constitutional amendments, sometimes referred to as living constitution theory.
Some of the more notable cases included Griswold v. Connecticut, Loving v. Virginia, The New York Times v. Sullivan, and Heart of Atlanta Motel, Inc. v. United States. The Warren Court’s most famous decision came in Brown v. Board of Education whereby the Court found “that in the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” It is well known that opponents of this unanimous ruling were anything but gracious in defeat. However, civil liberties advocates cherish many of the Warren Court’s rulings and for good reason. The Warren Court was extremely successful in changing the legal environment even if the precedent it created was not widely accepted by the broader public until a later time.
Another prominent Warren Court ruling is the case of Griswold v. Connecticut. In Griswold, the Court found “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance…Various guarantees create zones of privacy.” Justice Black’s dissent in Griswold sums up the opposition to this legal construct: “Such an appraisal of the wisdom of legislation is an attribute of the power to make laws, not of the power to interpret them. The use by federal courts of such a formula or doctrine or whatnot to veto federal or state laws simply takes away from Congress and States the power to make laws based on their own judgement of fairness and wisdom and transfers that power to this Court for ultimate determination.” In Griswold, the Warren Court birthed an entirely new arena of privacy law and simultaneously gave way to a later, more politically controversial case, Roe v. Wade.
Modern Day Feuds over the Future of Roe
Roe v. Wade became a political lightning rod during President Reagan’s nomination of Judge Robert Bork to the Supreme Court and continues to be a major area of disagreement. Roe is specifically important in that it implicates two key components of the progressive political agenda, a woman’s access to abortion and civil liberties more generally. Abortion is a polarizing issue given that religious Americans tend to view the procedure as conflicting with their faith, while abortion advocates view the procedure as providing access to medical care. Rulings for these groups range from either an outright ban of the procedure or unimpeded access, both of which are highly unlikely to come to fruition in a democratic society of over 330 million diverse Americans.
The Court in Roe opined that “restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage…they derive from statutory changes effected, for the most part, in the latter half of the 19th century.” Legal scholar John Hart Ely sums up the argument against Roe quite well: “What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure…[it] is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” These two conflicting visions continue to haunt us to this day because it exposes a larger problem, namely our expectations of our institutions.
Current Day View of the Court
If our current political discourse were to be examined by a medical professional, it is no doubt that it would be found unwell, likely even irreparably untreatable. Tablet Magazine’s Michael Lind diagnoses our current dilemma perfectly. “The stakes of the partisan balance of power on the Supreme Court are high. They are high because the Supreme Court of the United States is no longer a court, in any meaningful sense. It is now a legislature-a legislature that is vastly more powerful than the U.S. Congress and far less democratic,” he writes. Lind’s argument mirrors John Hart Ely’s: “One of the ways that the unaccountable, life-tenured government functionaries of the Supreme Court grab power from federal, state, and local elected officials is by claiming that actual, literal constitutional provisions are gesturing at some greater abstraction.”
In the past decade, a notable criticism of this practice came from conservatives who understood Chief Justice Robert’s opinion in upholding the individual mandate in NFIB v. Sebelius as abandoning the proper role of the Judiciary. As potential Supreme Court Justice Amy Coney Barrett wrote in a 2017 Law Review, “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute…had he treated the payment as the statute did-as a penalty-he would have had to invalidate the statute as lying beyond Congress’s commerce power.” As this case law builds it becomes precedent. Judges often rely on stare decisis, or past precedent, to determine legal outcomes. This over-interpretation of plain language into greater abstractions continues to build federal government leverage over state & local regulation.
This broader public view of judicial law-making extends across the political spectrum and it is furthering partisan divides. For years, Congress has delegated extensive rule-making responsibilities, or quasi-legislating, to the Executive Branch and the Judiciary has continued to grant deference to the Executive Branch in its efforts. In Griswold, Justice Stewart predicted this future: “subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves.” With this in mind, it is now possible to understand why each Presidential election and Supreme Court confirmation hearing becomes a political “bloodbath.”
This outcome is not inevitable, and it can be changed but only with a proper understanding of the Constitutional structure of our government and a re-evaluation of our political expectations. With proper expectations and a true adherence to democratic principles, our institutions can return to their intended role in the system of “checks and balances.”
For starters, we should expect our elected legislators to be the originators of legislation. The Executive should not resort to administrative rulemaking or guidance to skirt this process, nor should the Judiciary abuse its un-democratic nature to impose its will. Instead, lawmakers should work towards compromise and seek future reconciliation. With time, disagreements can be overcome through humility, dialogue, and respect for one another. Few issues are too important that they deserve to bypass lawmakers and if we come to believe this then we are no better than the authoritarian regimes we challenge abroad.
Of course, we live in a time when partisanship is at levels not seen in decades, if not a century. My call for change seems unattainable given our current situation, but maybe this madness is exactly what is needed. Maybe our politics does need to be reckoned with in order for us to return to order. None of this will change with one singular candidate as this requires us to look within to determine what kind of country we wish for future generations, a future devoid of a politics reliant on “raw political power all the way down.” Only when we reckon with the fact that this current situation is unsustainable will we be able to overcome the challenges before us.