Judges have become America's policymakers. And they're terrible at it.
The new Medicaid work requirements in southern states — which have thrown 18,000 people off their insurance in Arkansas — have been struck down. Judge James E. Boasberg of the DC Circuit Court ruled Kentucky and Arkansas hadn't justified their programs adequately, and so they're out at least for now. No doubt further legal action is forthcoming.
That's a good outcome for the beleaguered residents of these states. But it also demonstrates the extent to which American policy is made by the courts — who are usually terrible at it.
An even more stark example of judicial legislating was revealed in a new biography of John Roberts. Apparently during the NFIB v. Sebelius negotiations, Justices Elena Kagan and Stephen Breyer essentially traded votes to make the ObamaCare Medicaid expansion optional in return for Chief Justice Roberts supporting the individual mandate.
The actual decision, of course, clumsily papered over its motivation with legal rhetoric. But this is classic legislative horse-trading: swapping votes on policy matters to get to a workable compromise. At bottom, it had nothing to do with the law as written or the Constitution, and everything to do with the balance of partisan power on the court.
What's more, it was incompetent legislating. The ObamaCare exchanges are the worst part of the law, while the Medicaid expansion is the best — indeed, it turns out the individual mandate is largely unnecessary, as exchanges have continued to function about the same without it. The liberals Kagan and Breyer should have made the opposite trade, but instead they denied Medicaid to 2.5 million people for basically nothing in return.
One reason why is likely that Supreme Court justices are not health-care policy experts, nor do they have a policy staff to work it out for them, nor some democratic constituency that might be able to pressure them to vote one way or another. "Indeed, for all those reasons it's broadly considered inappropriate for the courts to rule on these cases on the basis of policy desirability," as Matthew Yglesias writes.
This goes all the way back to Marbury v. Madison, the famous 1803 decision that established judicial review — the principle that the courts can invalidate legislation they think violates the Constitution, despite the fact such a power is nowhere mentioned in that document.
None other than Thomas Jefferson was scathingly critical of this doctrine. In a letter, he wrote:
To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. [Letter to William Jarvis]
If we review American history, we must conclude Jefferson was absolutely right. The brief period of Warren Court progressivism is an exception from the overall historical pattern. American judicial system has routinely exercised tyrannical and unjust power, from helping to spark the Civil War by declaring all black Americans non-citizens, to protecting KKK terrorist murderers, to overturning civil rights legislation, to enshrining Jim Crow, to breaking strikes and unions, to gutting antitrust law, to declaring all taxes on interests, dividends, and rents unconstitutional, to banning all economic regulation to protect workers instead of business, and on and on.
As Richard White writes in his history of the Gilded Age, The Republic for Which It Stands, the courts became de facto rulers of the country in many aspects during this period. "Judges and courts became basic sites of state building, performing functions in the United States that bureaucracies undertook in other countries," he writes. Some vital decisions — like enshrining the notion of corporate personhood — were not even explained.
Instead of policy being written by the legislature to serve the interests of a majority constituency, then implemented by a legible state bureaucracy, in the United States a great deal of legislating happens through an unaccountable legal priesthood, whose very policy aims have be disguised by arcane rhetoric. The results speak for themselves.
Most other developed nations do not have this kind of hypertrophied legal system — in Denmark, for instance, courts have only invalidated a parliamentary law once. Neither conservatives nor social democrats there can get what they want by stuffing the courts with partisan hacks. They've just got to win elections. It might be worth trying someday.