Supreme Court Hubris: It Is Time to Return Power to the People
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Supreme Court Hubris: It Is Time to Return Power to the People

The Supreme Court’s 2021-2022 term which starts the first Monday in October will likely be one of the most important of the last 50 years. The Justices have already agreed to hear disputes involving gun control legislation and abortion rights and are likely to decide a major affirmative action case as well. Given that Republican presidents appointed six of the nine current Justices, there is little suspense as to how these cases will turn out. The Court will likely cut back or eliminate abortion rights, strengthen gun rights, and make it much harder or impossible for colleges and universities to use racial criteria to achieve greater diversity.

As I wrote in my book Supreme Myths in 2012, the Court should return all three of those difficult, complex, and controversial issues to the political process, along with other constitutional questions where neither unambiguous text nor uncontested history clearly prevents the voters’ choices. It is well past time to return, in the 1960s phrase, “the power to the people.” 

Even before the states ratified our Constitution in 1788, in other words, acting under a veil of ignorance not knowing which political faction would control the courts, there were strong voices complaining about the possibility of life-tenured, unelected judges having the power to veto laws passed by voters and legislators. Writing under the pen name Brutus, an anti-federalist politician wrote the following prophetic words in 1787: 

I question whether the world ever saw…a court of  justice invested with such immense powers, and yet placed in a situation so little responsible. … There is no power above them, to control any of their decisions. There is no authority that can remove them. … they are independent of the people, of the legislature, and of every power under heaven. Men         placed in this situation will generally soon feel themselves independent of heaven itself.

Alexander Hamilton responded directly to these serious concerns in Federalist No. 78, the most important pre-Constitution document discussing the role of the new Supreme Court. He predicted that the Justices would only invalidate laws that are at an “irreconcilable variance” with the Constitution, and only if the Justices exercised “judgment” not “will.” Where the Constitution was silent and history contested, the Justices would allow other political decision-makers to do their jobs—or so Alexander Hamilton thought.

This form of narrow, clear-error judicial review made sense then and would today as well but is not the kind of judicial review the Justices have exercised throughout American history. Hamilton’s predictions about how modestly the Court would act were incorrect. The Court’s invalidation of abortion, affirmative action, gun control, voting rights, and campaign finance laws have placed the Justices at the center of many of our most important social and political controversies.

Hamilton also speculated about what would happen if the Justices did overreach. Calling the Supreme Court the “least dangerous branch,” he said that the “executive … holds the sword of the community. The legislature … commands the purse. … The judiciary … has no influence over either the sword or the purse … and can take no active resolution whatsoever.” Hamilton thought that if the Court exceeded its proper authority, the other two branches of the national government or the people would resist the Court’s demands. As other scholars have noted, he was wrong on those points too, at least up to now. 

We should not allow a majority of five or more Justices to warp our political system and resolve important societal problems absent obvious constitutional errors by other governmental officials. The Constitution does not mention affirmative action or abortion and it refers to gun rights only in the context of formalized state militias. Equally important, how could the people who ratified the Second Amendment (1791) or the 14th Amendment (1868) possibly have known what our country would be like so far in the future? Guns today bear little resemblance to the muskets of the founding, the world of 1868 had no idea that segregation and formalized racial discrimination would last until 1964 with effects far beyond that date, and the role of women in our country has changed dramatically since the 19th century as have our understandings of the fetus and when it is viable.

Modern problems like gun control, abortion, and affirmative action call for current solutions and compromises which cannot be discerned by unelected judges looking at stale, formal legal criteria. In the long run, both political parties and the American people of all political persuasions would benefit from a much more restrained Supreme Court.

Until the Justices learn to control themselves and act with more humility and less ideology, those with the sword (the Executive) and the purse (Congress) should take steps to minimize the Court’s overreaching. There are numerous constitutional ways to accomplish that goal as the Biden Commission looking at reforming the Court has heard. The place to start is to end life tenure for the Justices and replace it with fixed terms and then a seat on the lower courts—a proposal that does not require a constitutional amendment. Congress should also strongly consider cutting back the Court’s jurisdiction over lower courts, which Article III of the Constitution unambiguously allows. 

Republicans favor today’s Supreme Court but disapproved of the Warren Court while Democrats fear the current Court and long for the more liberal days of the 1960s. However, everyone should wish for a more representative, democratic government that we can hold accountable and expect to perform the way we want it to. 

We do not have to accede to the Justices’ demands. It is well past time that we recognized their hubris and return the real power to govern our lives to the people. Otherwise, we have no one to blame for our constitutional misfortunes but ourselves.

 

Eric Segall is a professor of law at the Georgia State University College of Law and the author of Supreme Myths.

 

Suggested citation: Eric Segall, Supreme Court Hubris: It Is Time to Return Power to the People, JURIST – Academic Commentary, September 27, 2021, https://www.jurist.org/commentary/2021/09/eric-segall-supreme-court-hubris/.


This article was prepared for publication by Katherine Gemmingen, Commentary Co-Managing Editor. Please direct any questions or comments to her at commentary@jurist.org


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