It’s Not Totally Cool That Nine Robed Elders Run America
Jun 28 2013
Photo via Flickr user DonkeyHotey
American politics is a lot like baseball in that basically nothing happens for long, long stretches of time. There are occasional flurries of action, however, when the Supreme Court announces decisions on the major cases that have been brought before it. In the past couple of weeks, the court has ruled, among other things, that “naturally occurring” human genes can’t be patented; that the federal government has to recognize same-sex marriages, though states don’t necessarily have to allow gays to marry; that refusing to answer questions from the cops can get you in trouble; that the University of Texas needs to reconsider its affirmative-action policies; and that the section of the Voting Rights Act that mandates some states to get permission from the federal government before changing their voting laws is outdated. All of those are potentially far-reaching decisions, and they were made by a panel of unelected judges who have their jobs for life. You can call the US a democracy if you like, but really, most of the important policy choices are made by a council of elders.
The vague idea most of us have about the Supreme Court is that it exists to determine whether laws are constitutional or not. In the words of Chief Justice John Roberts during his nomination hearings, a judge’s job is to “call balls and strikes.” The assumption is that the Constitution has a clear meaning and that applying that meaning to individual statues is just a matter of thinking and studying really, really hard.
That’s insane, of course. The justices are all very intelligent and accomplished—they didn’t ascend to the position of tribal elders for nothing—but they have vastly different viewpoints, ranging from Clarence Thomas’s obsession with 18th-century law to Anthony Kennedy’s federalism to Antonin Scalia’s prudish moralism and homophobia. The court is very often divided on intensely partisan lines, with more cases being decided on a vote of 5-4 than ever before. What’s more, those 5-4 decisions are often the hugely important ones, like the infamous Citizens United case that allowed corporations and unions to spend infinity plus one dollars on political campaigns, or the recent decision on the Voting Rights Act that led immediately to a new, potentially discriminatory redistricting map in Texas.
Both of those rulings split along exactly the same lines, with a conservative coalition of Roberts, Kennedy, Thomas, Scalia, and Samuel Alito beating out the liberal minority. And both rulings essentially overturned what had been pretty well-established laws—Citizens United gutted the McCain-Feingold campaign finance reform act, which was signed by George W. Bush in 2002, and the VRA decision came just seven years after the law had been renewed by a landslide in both houses of Congress. In short, laws that democratically elected representatives agreed upon are getting rejected because an increasingly partisan council says so.
The immense power of the Supreme Court shouldn’t be an exclusively liberal concern. Conservatives praised the dismantling of the VRA as a “victory for federalism,” but it’s a victory dependent on the whims of a nine-member court whose members are appointed by the president. If right-wingers are seriously concerned about the big, bad federal government, which the Supreme Court is a part of, they should take after Ramesh Ponnuru of National Review, whose recent plea to the court to leave the lawmaking to the lawmakers is at least intellectually honest. The freer the court feels to legislate from the bench, the more public policies will be subject to the court’s quirks and the more public debate will get replaced by lawsuits.
The way laws get made these days involves two steps. First there’s the incredibly slow grind of public and private negotiations and compromises in the House and Senate—a process that, in the case of those rare pieces of major legislation with chances to pass, can take months and require input from dozens of interest groups. Then the Supreme Court gets a crack at it and if five of the nine aren’t OK with a law, whoops, too bad everyone.
Here’s an example: Whatever you think of it policy-wise, Obamacare was passed because a majority of both houses of Congress elected by a majority of Americans wanted it. Democrats pushed the law through at a fairly high political price—some of them lost elections because of it—and all that effort would have been completely wiped out had Roberts voted against the law two years after it passed. Mr. Balls and Strikes’s reason for doing so might have been about the law, or it might have just been about making the court look a little less partisan. Either way, the country was in his hands.
The next big legislative effort is the immigration reform bill, which was passed in the Senate but faces a huge obstacle in the GOP-controlled House. If some version of the law squeezes through somehow, it will probably have to be ruled on by the Supreme Court. There’ll be some kind of legal reason to bring the case before the justices, just as there’s always an excuse for the gang of nine to decide which major laws stay laws. The Supreme Court isn’t a court so much as it is a third chamber of Congress.
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