—Miguel Schor, Professor of Law and Associate Director of the Drake University Constitutional Law Center
In The Federalist, Alexander Hamilton wrote that the United States Supreme Court is the least dangerous of the three branches of government as it lacks the power of the President or Congress. Hamilton did not and could not have envisioned the explosive growth in judicial power that is culminating in a constitutional revolution led by judicial conservatives that aims to refashion virtually the entire corpus of constitutional law. The most politically salient of these transformations is undoubtedly Dobbs v. Jackson Women’s Health Organization (2022) in which the Court overturned nearly 50 years of precedent protecting a woman’s right to reproductive health care. Dobbs, however, is only one piece of a profound set of changes unfolding at record speed. The conservative supermajority on the Court is curtailing the authority of Congress to solve national problems; expanding the authority of the executive to control the administration of laws; expanding the boundaries of free speech thereby providing business interests with a mechanism to fend off regulation; transforming the religion clauses into a potent tool that enables religious sects to opt out of laws they do not like while simultaneously enhancing their claims to government largesse; sharply limiting the power of the political branches to respond to gun violence by destroying long-standing understandings of the Second Amendment; and reconceptualizing the Fourteenth Amendment by reinterpreting substantive due process and equal protection.
The question Americans face is how did the “least dangerous branch” gain the power to become such a disruptive force in American politics. The commentary focuses on the political struggles that have produced the most conservative court in 90 years. The answer to this issue, however, lies in a combination of the politics of appointments, judicial ideology, and the structural features of our Constitution. America has what scholars call an “exceptional” Constitution because it differs in crucial respects from the constitutions of our peer democracies. Three features of our unusual constitutional order have enabled the Supreme Court to arrogate an unparalleled degree of authority.
First, the Supreme Court faces remarkably few formal checks and balances when it transforms the meaning of the Constitution. The framers distrusted power but had no experience to draw on in thinking about judicial review. Living under a written Constitution that would enable courts to remake and reorder politics was a new phenomenon that began to take shape shortly after the founding of the republic. Judicial review was contested and its boundaries uncertain in the early American republic.
The lack of constitutional checks and balances becomes clear when we compare the United States to its sister democracies. Judicial review became a widespread global phenomenon after the Second World War. No constitutional framer who paid attention to the historical experience of the United States could take Hamilton’s idea that courts are the least dangerous branch seriously. Consequently, democracies abroad employ a richer set of institutional mechanisms to limit judicial discretion. These tools include lower amendment formulas that enable citizens to more readily exercise their ultimate authority over constitutional meaning; judicial term limits or fixed retirement ages that make it difficult for politicians to pack the courts with their partisans for decades; supermajority appointment provisions that force competing faction to bargain and compromise (and which help prevent ideologues from being appointed); constitutional limitations clauses that inform courts that they should treat legislation with respect; and constitutional provisions that require a judicial super-majority before legislation is invalidated.
Second, the United States Supreme Court enjoys considerably more political space to operate than is true of national high courts abroad. The United States Constitution is exceptionally undemocratic when compared to those of its peer democracies that have continuously been in operation since 1950 (and the United States did not become a full democracy until the Voting Rights Act of 1965 led to near universal adult suffrage). The exceptional features of America’s constitutional order include a political class that has the power to insulate itself from the electorate by gerrymandering and voter restrictions; staggered elections; strong bicameralism with two houses of equal strength; malapportionment in the Senate that privileges rural, small population states; the electoral college; a Supreme Court poorly constrained by checks and balances; a federal government that may lack the power to solve national problems (at least according to a majority of the Supreme Court given its current ideological makeup); and an extremely high bar to constitutional amendment. Consequently, political checks and balances do not provide much of a speed bump to a Court bent on revolutionizing constitutional law, particularly when political parties are polarized and the government consequently immobilized.
Third, the text of the American Constitution is exceptionally short. The Constitution is written in broad generalities that invite judicial discretion. Americans have been fighting over how to interpret the Constitution since the founding of the Republic. With over two centuries of experience, Americans can be confident that no interpretive method solves the problem of judicial discretion. Consequently, who sits on the Supreme Court matters. American state constitutions as well as the constitutions of our peer democracies, on the other hand, are longer and more detailed than the federal constitution. State constitutions as well as many of the constitutions of our peer democracies are also easier to amend. Constitutional specificity combined with flexibility is an important constitutional drafting strategy because it shifts power to ordinary citizens, who have the ultimate authority over constitutional meaning, and away from courts.
America’s unusually weak political and constitutional checks and balances did not readily facilitate such extreme judicial outcomes in the past because precedent—the doctrine that courts should respect past decisions—was an important internal check on judicial discretion. The Justices spearheading the conservative constitutional revolution are in too much of a hurry to pay attention to old-fashioned ideas such as precedent. Precedent, as Dobbs v. Jackson Women’s Health Organization illustrates, is fast becoming extinct. The consequences of the loss of the wisdom of past generations will be with us long after the conservative Justices on the Court retire. The job of the Constitution is to provide a common ground that facilitates bargaining and compromise. Social media has disrupted democracy because it enables citizens to listen only to the views they agree with. Ideological echo chambers facilitate extremism and undermine compromise. A similar phenomenon is now at work in the Supreme Court. Precedent forced the Justices to take seriously and compromise with views they disagreed with. The destruction of precedent means that the Justices of the Supreme Court, much like ordinary citizens, now inhabit intellectual echo chambers. Its decisions consequently have a remarkably partisan lean that is eroding political support for the Court. A Court unable to reach constitutional common ground will have a long-term, acidic effect on American democracy.
Conservative judges and legal intellectuals call themselves originalists, claiming that their views are grounded on the views of the generation that framed the Constitution. There is a considerable body of scholarship that sharply questions whether the originalist project is well grounded in history. In one very important sense, however, the term originalism does real work. The conservative judicial revolution is tantamount to an original social science experiment on American democracy. Never in American history has so much law been overthrown in such a short period of time. The results of this experiment will not be known for some time, but it is likely to turn out poorly. Abraham Lincoln pointed out in his First Inaugural Address when he criticized the worst decision ever issued by the Supreme Court, Dred Scott, that the job of the Court was to make decisions, but it was up to the American people to decide the meaning of the Constitution. The meaning of the Constitution has changed in the past, but those changes were supported by large majorities of American citizens. This is not the case with the conservative judicial revolution. There is no consensus on constitutional change as the United States is remarkably polarized and the bulk of the changes were not subject to much, if any, public deliberation. The United States Supreme Court, in short, is not the least dangerous branch of government but the most democratically disruptive court in the world.
Suggested citation: Miguel Schor, From the Least Dangerous Branch of Government to the Most Democratically Disruptive Court in the World, Int’l J. Const. L. Blog, Jul. 12, 2022, at: http://www.iconnectblog.com/2022/07/from-the-least-dangerous-branch-of-government-to-the-most-democratically-disruptive-court-in-the-world/