Alexander Hamilton wrote that of the three branches of government, the judiciary “from the nature of its functions, will always be the least dangerous.” That judgment, rendered by one of the Constitution’s foremost advocates in the Federalist Papers in 1778, probably would strike millions of Americans in 2022 as dangerously naive if not wholly erroneous.
In the wake of this June’s decision by the U.S. Supreme Court to abolish by judicial fiat the half-century-old constitutional right to abortion, the court’s conservative majority is rightly perceived as a clear and present danger to other settled individual rights, including interracial and gay marriage, same-sex relationships and access to contraception. And who knows if voting rights might also be circumscribed?
In that context, Hamilton made a relevant point in elucidating the role of the judiciary: “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.”
While conservative members of the current court have paid rhetorical respect to precedent during their Senate confirmation hearings, their actions demonstrate that they are only too anxious to overturn prior court decisions that do not align with their policy preferences or religious beliefs, as in the abortion ruling.
This, of course, is the very definition of the “judicial activism” that conservatives have lamented for so long. The fig leaf for this activism is the interpretive doctrine of “originalism,” to which the conservative justices claim to adhere. Under this doctrine, the Constitution can only be interpreted according to its “original meaning,” which can be divined by determining what its words actually meant to the public at the time it was adopted.
We are hardly the first to point out that this doctrine leads down a blind alley. No one can say with any degree of certainty what the provisions of the Constitution meant to the various state conventions that ratified it at the end of the 18th century. Moreover, as David Cole, national legal director of the American Civil Liberties Union, noted in a recent New York Review of Books article, the Constitution speaks in general terms of such conceptions as “liberty,” “due process,” “equal protection,” and “cruel and unusual punishment.” This is surely consistent with the view that the Framers did not intend to create a historical straitjacket for their successors but rather to write a broad charter of liberty that would guide future generations when they confronted problems that could not be foreseen or even imagined at the time it was written.
A further problem with originalism, of course, is that it issues an open invitation to pick and choose what historical evidence is relevant, as the court majority also did last term in overturning a New York law regulating the concealed carrying of firearms. If you doubt it, it is well worth consulting now-retired Justice Stephen Breyer’s dissenting dissection of the intellectual dishonesty deployed by the majority in that case.
While it is depressing that the nation is now at the mercy of five or six judges whose notion of what the Constitution requires is rooted in a cramped conception of the past, it is not cause for abject despair. One of the hinges on which the recent midterm elections turned was the court’s abortion ruling; as a result, the anti-abortion, election-denying Republican Party was deprived of its predicted electoral sweep.
Viewed in this light, the further the court’s rulings stray from the popular will, the more they may serve to re-energize American democracy, which was perhaps what Hamilton was relying on to keep the judiciary in check.
Rights established by judicial decree can also be abolished by judicial decree, but those secured in the political arena that express the will of the people through their representatives in state legislatures and Congress are on a far more solid footing.
For example, the Respect for Marriage Act now moving through Congress would enshrine marriage equality into federal law. It is likely to be enacted, with 12 Republican senators joining all 50 Democratic members in advancing it. Of course, the Supreme Court can also invalidate acts of Congress, but risks its own legitimacy when it does so without making a compelling case that the law in question egregiously violates the Constitution.
Justice Felix Frankfurter observed in 1944 that freedom and democracy are unremitting endeavors, not achievements. Thus are rank-and-file Americans called to do the hard work of democratic participation on a continuing basis, not to rely on nine justices in Washington to further the cause of American liberty and human dignity. Because they won’t always do so — and today are more likely to do the opposite.