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Answering the Supreme Court's Critics: The Court Should Do More, Not Less, To Enforce the Constitution

The Huffington Post The Huffington Post 23/10/2015 Evan Bernick
THE CONSTITUTION © Tetra Images via Getty Images THE CONSTITUTION

The Supreme Court is under attack. The Court is less popular that it has been in decades. Politicians have called for curbing the Court, proposing measures to strip the Court's jurisdiction and subject justices to periodic retention elections. Scholars of varying ideological persuasions have castigated the Court and issued profound challenges to its authority. A group of conservative scholars have challenged the legitimacy of the Court's decision concerning same-sex marriage in Obergefell v. Hodges and called upon officeholders "to refuse to accept Obergefell as binding precedent for all but the specific plaintiffs in that case." On the other side of the political spectrum, Professors Rick Hassen and Eric Segall have written provocative essays criticizing the Court's decisions in cases like Citizens United v. F.E.C. and Shelby County v. Holder and contending that the personal preferences of individual justices, not the Constitution, determine the outcomes of important constitutional cases. Segall goes so far as to raise the question of whether "a robust system of judicial review" is something "we as a people" should continue to tolerate.
While the Supreme Court has erred--grievously, inexcusably, in many cases--these attacks are misguided. The Court--and the federal judiciary more broadly--plays an essential role in our constitutional system as individuals' last line of defense against unconstitutional government action. We are better off with a judiciary that actively enforces the Constitution than one that allows overbearing majorities' views of minorities' rights as well as overreaching executives' understanding of the limits of their own powers to carry the day.
The recent criticism of the Court is unusual in its intensity, but it rests on premises that have supported attacks on the Court (and indeed, judicial review more generally) for decades. Prominent constitutional scholars, from Alexander Bickel to Mark Tushnet to Robert Bork, have regarded the Court as a uniquely "countermajoritarian" and therefore troublesome institution in an otherwise (mostly) pure democracy. They have also argued that at least some important constitutional questions do not admit of objectively correct answers, because legal principles are indeterminate and reasonable people might take different views of what they require in a given case. Finally, they have argued that democratic majorities are entitled to rule with unfettered discretion unless specifically forbidden by the Constitution from doing so. Taken together, these premises support the conclusion that the judiciary is a dangerous branch indeed, easily capable of usurping democratic prerogatives in "hard cases"--and the Supreme Court is particularly dangerous because most of the cases it confronts are "hard cases."
As I havewrittenelsewhere, I believe that all of these premises are flawed. But I want to focus here on the consequences of accepting them. Were the Court--and the judiciary generally--to scale back judicial enforcement of the Constitution on the grounds that it is written, as Justice Oliver Wendell Holmes put it, for people "of fundamentally differing views," how would things look?
Tragically, we do not have to speculate. We know precisely what happens when the judiciary does not actively enforce the Constitution and instead broadly defers to the government. Think of Carrie Buck, and the 30,000 Americans who were forcibly sterilized after the Supreme Court's decision in Buck v. Bell, when the Court (with Holmes writing for an 8-1 majority) upheld a compulsory sterilization statute on the grounds that "[t]hree generations of imbeciles are enough." Think of Fred Korematsu, and the 120,000 American citizens--men, women, and children--of Japanese ancestry who were evicted from the West Coast and held in internment camps across the country, with the approval of the Court in Korematsu v. United States. Think of Susette Kelo, and the residents of a working-class neighborhood that was bulldozed for so-called "economic development" after Kelo v. City of New London. Think of Homer Plessy, excluded from a "whites only" railroad car; Michael Hardwick, arrested for having sex with a man; Myra Bradwell, excluded from the practice of law for being a woman. These people--and countless others who suffered from the effects of the decisions that destroyed their property, their livelihood, their lives--are the victims of judicial abdication.
One might respond, of course, that the Court ought to have been just active enough to invalidate all of those unconstitutional actions while staying its hand in other cases, like Citizens United, Shelby County, and Obergefell. (For the record, I believe that the latter cases were all correctly decided). But as Professor Suzanna Sherry has observed, "No theory can draw the line between too many and too few judicial invalidations, nor specify parameters or constraints that produce a perfect balance." If we want the Constitution enforced as consistently as possible, we need to consider what approach to judicial review is best calculated to ensuring that result, recognizing that judges (much like other human beings) will make errors.
It is my contention that judges who engage in an earnest, impartial, evidence-based search for the truth concerning the constitutionality of the government's means and ends, rather than deferring to the government out of a sense of institutional "humility" or "modesty," are more likely to ensure that the government operates within constitutional limits than judges who do not. Constitutional transgressions are far more likely to come from the legislative and executive branches, which are subject to short-term political pressures that encourage them to broad views of their power and narrow views of individual rights. In fact, that's precisely what they have done over the course of American history. Judicial review operates as an insurance mechanism against such abuses of power.
What, exactly, does such judicial engagement entail in practice? In Enforcing the Constitution: How the Courts Performed in 2014-2015, the first installment in what will be a yearly review of key decisions at all levels of our judicial system, my colleague Clark Neily and I analyze 20 cases that vividly illustrate how judicial engagement works to protect Americans' freedom and how its absence--judicial abdication--harms them. Judges are not angels, and the heavens of an infallible judiciary are denied us; but, contrary to the Court's critics, an abyss does not await us. There is a consistent, principled, empirically-grounded approach to judicial review that is capable of fulfilling the Framers' vision of the courts as bulwarks against illegitimate assumptions of power by government and with Americans' expectations of "equal justice under the law." It is time that the highest court in the nation embraced it.


For a discussion of Korematsu, as well as a recent court decision involving NYPD surveillance of Muslim-Americans that grapples with Korematsu's legacy, tune into the Institute for Justice's Short Circuit podcast.

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