The Constitution's "Ugly Step-Child"? The American Judiciary

This piece originally appeared at RealClear Public Affairs Wednesday, 8 September 2021, under the title "The Supreme Court in the American Constitutional Order" and the byline Matthew J. Franck

Seal of U.S. Supreme Court

This spring, President Biden appointed a 35-member Presidential Commission on the Supreme Court of the United States, charged with soliciting expert views, deliberating among themselves, and reporting back to him on the subject of “reforming” the nation’s highest court. The commission’s members are themselves mostly eminent scholars of the Court’s work, preponderantly but by no means exclusively liberal ones. In their two public meetings so far (via Zoom), the members have taken written and oral testimony from 45 witnesses – also various eminences of the bar and the professoriate, and also mostly liberals.

Is there a crisis of public confidence in the Supreme Court, such that its "legitimacy" as an institution is threatened? Inasmuch as the Court continues — as usual — to outpoll presidents and Congress in public approval ratings, it would not appear so. (It won't do, however, to inquire too closely into what the public actually knows about the Court's work) The impetus for the Biden administration's commission appears to have been to placate Democrat Party elites who are in a panic over the fact that President Donald Trump was able, in his single term, to appoint three Supreme Court justices — Neil Gorsuch to succeed Antonin Scalia, a conservative; Brett Kavanaugh to succeed Anthony Kennedy, a "swing" justice, sometimes conservative, sometimes liberal; and Amy Coney Barrett to succeed Ruth Bader Ginsburg, a liberal. For the party elites fixated on the Court's composition, it's time to "pack" the Court by expanding the number of seats and filling those new seats with liberal justices while Biden is president.

To be fair, the Democrats are not alone when it comes to grasping for control of appointments to the Supreme Court. Why else would erstwhile Republican Senate Majority Leader Mitch McConnell have announced, immediately after Justice Scalia's death in February 2016, that no nomination by President Obama would even be considered before the November election?

With an opportunity coming in the Court's next term to reconsider Roe v. Wade — by far the most contentious precedent of the last half century — it's easy to understand why the appointment of justices is at the center of a partisan maelstrom in American politics. But without pretending that there was once a golden age when all Supreme Court decisions were calmly accepted, it's worth taking a step back to consider what role in the American constitutional order the Supreme Court was intended to play.

Front facade Supreme Court buildingUnder the Constitution's Article III, the Supreme Court and such other courts as Congress may create are granted "the judicial power", understood to be the adjudication of contesting parties' rights and duties, wrongs and remedies, according to the rule of law. Broadly speaking, two categories of "cases" and "controversies" were to fall under the federal courts' jurisdiction. One consisted of those lawsuits that the Framers concluded could be properly entrusted only (or ultimately) to the federal courts — such as suits between states, or between citizens of different states, or those in which the nation itself was a party. The nature of the controversy — which might implicate common law, state law, or any other source of legal principles — mattered less than the character of the parties involved.

The other category comprised those cases "arising under" the sources of law for which the nation was responsible:  the Constitution itself, acts of Congress, and treaties with other nations. Here the character of the legal principles at stake was what mattered, not who was suing whom.

And it was just here, in the interstices of Article III, that the germ of what we call "judicial review" was located. What if a suit brought to the federal courts for decision — or to state courts, with appellate review by the Supreme Court — requires the judges to choose between competing legal mandates, one grounded in an act of Congress and a contrary one grounded in the Constitution? The answer is supplied by Article VI, which declares the Constitution unqualifiedly to be the "supreme law of the land", but says the same of federal laws only if they are "made in pursuance" of — that is, consistent with — the Constitution. (The same provision explicitly declares federal law superior to any conflicting state law or constitution.)

It is often observed that judicial review, understood as a power to declare laws unconstitutional, is not explicitly given to the Supreme Court. This is a half-truth, however. The part that is true is that no freestanding, substantive power of proclaiming the Constitution's invalidation of an inferior law is accorded to the Court. But clearly some limited responsibility for the Constitution's authority, tied to the adjudication of ordinary lawsuits and prosecutions, is given by Articles III and VI, read together. The key to grasping the Framers' creation of judicial review, in both its modesty and its magnitude, is to understand that it is a power to disregard (not "invalidate") official acts undertaken without constitutional authority, but a power incidental to the decision of real legal disputes where rights and duties, wrongs and remedies must be adjudicated.

Justice Harry Blackmun
For the "Living" Constitution
Above:  Justice Harry Blackmun, author of
Roe v. Wade (1973) and Doe v. Bolton (1973)
Below:  Justice William Brennan, "creator" of the right to abortion
Justice William Brennan
". . . the worst poison cast into the well of our constitutional politics has been the creation of the right to abort an unborn child, for any reason and at any time in pregnancy, subject only to a few restrictions but no outright prohibitions."

In this light, we can understand why judicial review should not be conflated with judicial supremacy or finality — the idea that the Supreme Court has the authoritative and final word on the meaning of the Constitution in all its particulars, a word that cannot be gainsaid when the Court has spoken. For in the first place, there are a great many instances in which a law may remain "on the books" and routinely obeyed for many years, only to be disregarded by the judiciary at a later date when its authority is brought into question in a legal case. Were the courts vested with a full-blown constitutional "enforcement" power, they would be authorized to issue binding advisory opinions immediately after the passage of an act or the promulgation of an executive rule or order. But the impropriety of such advisory opinions, at any time, is one of the cardinal norms of limitation on the Supreme Court's authority.

In the second place, each of the other branches of our national government, no less than the judiciary, is charged by an oath taken by its officeholders to uphold the Constitution in all their official acts. Neither explicitly nor implicitly does the Constitution accord the Supreme Court a unique, special, or finally authoritative power to determine the meaning of the nation's charter, such that all public officials, state and federal, are bound to obey the judges' understanding of it. (The Court has on occasion proclaimed exactly this false proposition, most notably in an impatient overreaction to recalcitrant Arkansas officials in a 1958 school desegregation case.)

As Abraham Lincoln pointedly put it in his first inaugural address, alluding to the Court's disastrous 1857 Dred Scott decision, to affirm that the Constitution simply is whatever the Supreme Court says it is would be to surrender self-government itself to "that eminent tribunal". No one knows better than the justices themselves how often their judgments have been wrong about the meaning of the Constitution. To suppose that other responsible actors are never in a position to challenge, to push back, or even to contradict their judgments in an effort to set things right is to sacrifice democratic republicanism to one of the Constitution's subsidiary principles — a principle intended to guide and channel that republicanism, not to thwart it and create an appointed oligarchy of jurists.

Still, it must be acknowledged that the undemocratic features of the American federal judiciary — the appointment of the judges by the joint action of the president and Senate, and the security of their tenure "during good behavior" subject only to impeachment for cause — are best understood as a virtue and not a vice. Literally every exercise of judicial review to disregard a law or executive decision in the adjudication of a case is "undemocratic" inasmuch as it sets aside a decision made by officials who are answerable to the people in a way that judges are not. But this "counter-majoritarian difficulty" is no difficulty at all, if the Court is right about what the Constitution means and the matter was properly its business — no matter how popular, benevolent, or beneficial the disregarded policy may be. And if the judges are ever to gainsay the popular will with just cause, their institutional independence is the bulwark of their authority to do so.

Justcie Clarence Thomas
Champions of the Text
Above:  Justice Clarence Thomas
Below:  Justice Antonin Scalia
Justice Antonin Scalia
"The job of a judge is to figure out what the law says, not what he wants it to say."
~ Clarence Thomas

Another distinctive feature of the judiciary is the expectation that courts of law will explain their decisions, in a way no one expects legislators and executives to do. Presidents and Members of Congress, as well as elected state officials, must give an accounting of their political choices and preferences to the electorate. Judges, however, are obliged to offer legal opinions, at least in any notable case that has been fully argued, that explain how a decision was not a matter of their choice or preference, but instead a matter of compulsion for them, dictated by laws not of their own making.

This necessity of explaining how it is that decisions rest on the close examination of others' choices, rather than being the judges' own choices, also highlights the manner of legal reasoning at work in judicial opinions. For at least two generations, the major alternative modes of reasoning about the Constitution have been "originalism" on one side (mostly among Republican appointees to the Court), and a "progressive" or "living" Constitution on the other (mostly among Democrat appointees).

The first view is that the Constitution's original meaning, as understood when its provisions were ratified, is what governs decision-making, while the second is that the Constitution was enacted with the expectation that each generation would adapt its meaning to its own felt necessities. For all the genuine historical difficulties that may attend the first approach, it is a fair question just how the second approach is consistent with the purpose of a Constitution that was intended to constrain politics intergenerationally — and how it can avoid collapsing the judgments of courts into the political and moral preferences of judges.

While originalism has itself produced some controversial Supreme Court decisions — recent rulings on the Second Amendment come to mind — by far the greater number of decisions justly criticized for overreaching the proper bounds of judicial power have come from the progressive approach to constitutional interpretation. The invention of a right to same-sex marriage, the stripping of religion from the public square, and various other novel interpretations of the Bill of Rights and the Fourteenth Amendment have proven impossible to defend on the basis of the text, original meaning, or historic understanding of the Constitution.

But by far the worst poison cast into the well of our constitutional politics has been the creation of the right to abort an unborn child, for any reason and at any time in pregnancy, subject only to a few restrictions but no outright prohibitions. Since Roe v. Wade in 1973, a great sorting has taken place between the parties, with the Republicans now almost uniformly opposed to that ruling and the Democrats even more uniformly wedded to it. In attempting to remove the abortion question from democratic politics, the justices responsible for it have only succeeded in cutting a deep wound in the nation's commitment to constitutional fidelity and to impartial judging.

Chief Justice Taney
Blacks have never enjoyed rights of a citizen . . . are "regarded as beings of an inferior order . . . so far inferior that they had no rights which the white man was bound to respect."

The struggle over Roe has supplied all the energy for our repeated apocalyptic struggles over nominations to the Supreme Court, at least since Robert Bork's defeated nomination in 1987. The progressive jurisprudence that delivered Roe and underwrote its affirmation in Planned Parenthood ;v. Casey in 1992 has led its devotees into contortions of reasoning about the force of precedent — always an opportunistic doctrine for the progressive approach — and has corrupted much of what passes for legal scholarship today. Roe's affinity with Dred Scott is manifold. Both were grounded on a fallacious interpretation of due process. Both denied the protection of the law to large classes of human beings, interfered with legitimate democratic decision-making, and gave rise to tireless resistance movements. Both also prompted bad-faith arguments by their political and academic defenders and brought the Supreme Court from the temperate periphery of our political life, where it belongs, into its overheated center.

It is precisely the jeopardy Roe now faces, after President Trump's appointments to the Court, that has prompted Democrat elites to talk openly about Court-packing for the first time since Franklin Roosevelt tried such a gambit in 1937. So far, it looks like Court-packing is unlikely to be the Biden commission's recommendation — and the Court's just-concluded term did not supply much fuel to propel such a course of action. But if, in the next term, the Court finally reverses itself and undoes the harm it did with its Roe ruling, one paradoxical result may be a palpable relief that our highest judicial tribunal can begin to become again a mere court of law — and stop trying to be the final arbiter of our most acute political and moral problems. If this happens, then the Court will have obviated "reform" efforts precisely by reforming itself.

This essay is part of RealClearPublicAffairs's 1776 Series, which explains the major themes that define the American mind.

Dr. Matthew FranckMatthew J. Franck is a lecturer in Politics at Princeton University, senior fellow at the Witherspoon Institute, contributing editor of Public Discourse, and professor emeritus of political science at Radford University. He is the author of Against the Imperial Judiciary (University Press of Kansas, 1996) and editor of, or contributor to, books published by Lexington Books, Oxford University Press, and Cambridge University Press. His essays and reviews have been published by American Political Thought, the Review of Politics, the Claremont Review of Books, the Wall Street Journal, the Washington Post, First Things, National Review, the Weekly Standard, The Dispatch, and Public Discourse, among other publications.


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