Americans love courts.
Despite the jokes about sending attorneys to the bottom of the sea, legal disputes and judicial decisions play an outsize role in the national imagination, as they have for centuries. In Democracy in America, Alexis de Tocqueville noted "[t]here is virtually no political question in the United States that does not sooner or later resolve itself into a judicial question." Because Americans are disproportionately represented by lawyers acting under a Constitution written mostly by lawyers that provides endless fodder for legal wrangling, Tocqueville said, "the language of the judiciary becomes the vulgar language. Thus the legal spirit, born in law schools and courtrooms, gradually spreads beyond their walls. It infiltrates all of society, as it were, filtering down to the lowest ranks, with the result that in the end all the people acquire some of the habits and tastes of the magistrate."
That was 1835. Imagine if Tocqueville's contemporaries had the chance to watch The Good Wife or read The Pelican Brief.
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This love affair with the judicial branch is why so few commentators have noticed the most bizarre feature of the abortion debate, which reached a new crescendo this week: the fact that it's up to the courts in the first place.
By subjecting resolution of a profound moral dispute to the academic presuppositions and personal inclinations of nine unelected judges, arguments in Dobbs v. Jackson Women's Health should remind us of the vast, distorting, and unjustifiable power the Supreme Court has come to wield. Whatever the outcome, the problem is judicial review itself.
Encouraged by civics instruction that avoids international comparisons, as well as by legalistic popular culture, Americans take it for granted that courts are entitled to unilaterally cancel statutes they find inconsistent with the Constitution. In fact, so-called "strong" judicial review of legislation is historically novel.
It is not a feature of the British tradition, in which acts of Parliament are immune to legal challenge. Neither was it practiced by the Roman republic that inspired many American patriots (although some saw precedents among the biblical Hebrews). It's arguably not even in the Constitution. The Supreme Court asserted this authority in Marbury v. Madison (1803), more than a decade after the Constitution was ratified.
American-style judicial review has become more common since World War II, partly because of the increasing global influence of the United States, but it's still far from universal. Some democracies, including the Netherlands, do without judicial review altogether. Others, such as Canada, have adopted a limited version in which legislators are authorized to override judicial decisions under certain conditions. And whatever was the case in the biblical narrative, the matter is unsettled in the modern state of Israel, where the role of the High Court of Justice is a divisive issue.
The rarity of a practice is not necessarily a criticism. And now, many Americans are proud of the Supreme Court's distinctive prominence. Reverence for the judiciary is particularly intense among progressives, who celebrate decisions like Brown v. Board (1954), Lawrence v. Kansas (2003), and, yes, Roe v. Wade (1973), as upholding equality and freedom against tyrannical majorities. The weird cult of the late Justice Ruth Bader Ginsburg was only the most recent expression of this affinity.
But Ginsburg's replacement by Justice Amy Coney Barrett reveals a major drawback of strong judicial review: It's most appealing when people who share your opinions are in charge. That's why conservatives, who once denounced judicial activism, have become more friendly to a powerful Supreme Court (and judicial branch in general). Some argue the justices should not only permit state legislatures to regulate abortion as they please but should impose a national ban on the practice under the 14th Amendment. Left-wing critics of judicial review (like The Week's Ryan Cooper), meanwhile, are getting a more respectful hearing from liberals gripped by fear of theocracy.
Legal scholars are likely to distinguish between the court's oversight of state statutes, including many of the famous civil rights cases as well as the Mississippi abortion law now being considered, and acts of Congress. Since the Constitution is the supreme law of the land, there's a stronger case for the federal judiciary to constrain the authority of state legislatures. But many of the distortions encouraged by strong judicial review persist either way. One is that it personalizes authority in way that seems inconsistent with republican government. Extended lifespans and waning norms of retirement render us more like feudal retainers awaiting the death of our lords.
The authority of the court over so many controversial matters also allows the elected branches of government to evade responsibility. Rather than making decisions they expect to be enforced, they can take symbolic actions in the knowledge that the court is likely to intervene. This tendency afflicts executive officers as well as members of legislatures; President Biden's failed eviction moratorium is a recent example of such performative strategies.
Defenders of judicial review sometimes argue court proceedings display a special rationality that gives them educational value. The careful reflection and argument supposed to characterize judicial deliberation can be seen as models for the practice of citizenship more generally. But legal scholar Jeremy Waldron finds little evidence that lawyers' and judges' analysis of moral and political dilemmas is particularly acute. Their expertise is in texts and procedure, not political philosophy.
That formalism and abstraction corrupts the rest of us. Rather than discussing the real matters at hand, Americans have a tendency to get sidetracked into disputes about precedent, interpretation, and legal jargon. As The New York Times' Ross Douthat argued in a recent column, however, such considerations are at best secondary and sometimes merely a distraction. Whatever your position on abortion, the dispute in Dobbs is not really about the meaning of the phrase "undue burden."
The biggest problem with giving judges the last word, though, is also the most obvious: To quote Alexander Bickel, a pioneering critic, "when the Supreme Court declares unconstitutional a legislative act ... it thwarts the will of representatives of the actual people of the here and now." The framers of the Constitution had no intention of establishing a simple majoritarian government, which they feared as a precursor to tyranny. But the inflation of the Supreme Court's role at the expense of elected legislatures unbalances their vision of a republic in which, eventually and for the most part, the majority rules.
For all that, there's little we can do to cut the court down to size. Despite the distortions it encourages, the current arrangement seems to be popular. That's why Biden administration dashed hopes for courtpacking. And even if the reversal of Roe were to revive the proposal, it's hard to understand what progressives expect to gain. Biden might be able to temporarily outnumber former President Donald Trump's appointments. But the next Republican president and Congress would be free to restore a conservative majority.
The court itself would pose an obstacle to other suggestions. For example, law professors Ryan Doerfler and Samuel Moyn propose that Congress impose a supermajority requirement on court decisions striking down federal statutes. There's no reason to think the justices would accept that limitation, though. They could simply rule unconstitutional legislative attempts to limit their ability to declare legislation unconstitutional.
Revising the Constitution itself is a theoretical possibility, of course. If I were proposing amendments, I might take inspiration from Canada and recommend a form of legislative override. But amending the Constitution is so difficult that efforts in that direction are almost certainly doomed.
Like everyone else, then, I'm stuck waiting to find out what our judicial liege lords decide. As I've written in the past, I hope the present cohort clean up their predecessors' mess and restore abortion to the authority of the states. The best result, in other words, would be corrective use of a dubious power. Yet one way or the other, the problem remains.
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