SCOTUS as an Instrument of Minority Rule

The Supreme Court has become the most powerful branch of government and has become an instrument of minority rule.

The Imperial Supreme Court, by the author. Image of the Supreme Court building from Wikipedia Commons under the CC-by-2 license.

Welcome Back to Win-Win Democracy

Last time we went on a search for win-win solutions to the fundamental conflicts over religious freedom that have been playing out over recent decades. The really important conflicts — the ones for which the Crusaders’ attempts to impose their religious beliefs on the rest of us cause harm to others — seem to resist win-win solutions, precisely because one group of people wants to impose their will on the rest of us and they consider that their only win. There is no alternative other than to fight the battles in all three branches of government.

Unfortunately, having reshaped the Robert’s Court into a reactionary body, the Crusaders are winning. As Andrew Seidel puts it:

“The Crusaders went after the judiciary as a tool of minority rule” — Andrew L. Seidel¹

In this issue of the newsletter, we’re going to talk about how the Court often imposes minority rule; in the next issue, we’ll discuss proposals to lessen the Court’s anti-democratic role in setting the country’s policies.

Is SCOTUS Illegitimate?

Since the Court’s overthrow of Roe v. Wade, this question is being asked ever more frequently. Simply search for “is the Supreme Court illegitimate?” One result of such a search, which I found readable and useful, is Spencer Bokat-Lindell’s New York Times opinion piece.

Liberal Justices on the Court’s Legitimacy

Justice Kagan’s dissent in Dobbs v. Jackson Women’s Health Organization (with Justices Sotomayer and Breyer concurring), puts it plainly. Referring to the authors of the majority opinion² in Planned Parenthood v. Casey, the 1992 case that upheld the right to abortion delivered by Roe v. Wade, Justice Kagan wrote:

“They knew that the legitimacy of the Court [is] earned over time. They also would have recognized that it can be destroyed much more quickly. … The American public, they thought, should never conclude that its constitutional protections hung by a thread—that a new majority, adhering to a new ‘doctrinal school,’ could ‘by dint of numbers’ alone expunge their rights.”

She goes on to conclude:

“It is hard—no, it is impossible—to conclude that anything else has happened here. … In overruling Roe and Casey, this Court betrays its guiding principles.

So, there you have it: the three liberal members of today’s Court question the Court’s legitimacy.

It is a stunning indictment that a third of the sitting justices question the legitimacy of the Court.

Indeed, during the Dobbs oral arguments, Justice Sotomayer noted that the Senate sponsors of Mississippi’s ban on abortions after six weeks, “said we’re doing it because we have new justices.” Justice Sotomayer then asked (p. 15):

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? … I don’t see how it is possible.”

Political Legitimacy

As Professor Eric Orts explains in his article Supreme Illegitimacy:

“Conservative and liberal political theories of different stripes agree that a foundational purpose of government is to preserve the lives and assure the safety of its citizens. They agree that government is justified by the need to preserve civil order through law, ideally through democratic processes, to protect the unalienable right to life.”

A government system that deprives a large number of its citizens of their basic rights — including the right to life — loses its political legitimacy.

Three rulings the Court issued in June 2022 directly threaten citizens’ right to life:

• Guns: New York State Rifle & Pistol Association v. Bruen overturns a New York gun licensing law, which has been in effect for a century, that requires people who want to carry concealed weapons in public to show cause before being granted a concealed-carry permit. The Court’s ruling, written by Justice Thomas, appeals to historical tradition.
  
  As the League of Women Voters explained:

  “This [historical tradition] test seemingly only applies to the actual regulation itself, while not considering that the weapons being regulated have evolved from muskets to semi-automatic weapons since the days of the historical backdrop the Court uses in its analysis. Under this reasoning, the guns being regulated continue to evolve, but the regulations on those guns cannot.” 

  The Court ignores the actual impact on people’s safety of overturning laws passed by state legislatures to protect citizen’s lives in public.

• Women’s Health Care: The Court’s decision in Dobbs discarded 50 years of settled law that protected women against forced birth and replaced the law with what? Well, replaced it with whatever states choose to do, even if there are no exceptions for fatal birth defects or risks to the mother’s life.

  
  Once again, the Court ignores the devastating impact of its decision on real people: Women will die³ in the name of the Court’s originalism theory of Constitutional interpretation.

• Regulations to Reduce Climate Change: In West Virginia v. EPA, the Court invoked its newly-invented and ill-defined major questions doctrine to prohibit the EPA from requiring utilities to switch from burning coal to generate power to other technologies like natural gas or renewables. Previously, the EPA had only required improvements in the efficiency of burning whatever fuel a power plant used.

  
  The Court’s argument was that such a “major question” like forcing a change of fuel could not be decided by an administrative agency, even in the context of laws passed by Congress authorizing the agency to regulate toward certain goals, but must instead be decided directly by Congress. See Professor Richard Revesz’s article SCOTUS Ruling in West Virginia v. EPA Threatens All Regulation for more detail and thoughts on its implications.

  
  Once again, SCOTUS ignores the reality of rising impacts — including deaths — of climate change both in the United States and worldwide

The Court loses its political legitimacy when it issues decision after decision that threaten our unalienable right to life.

Legal Legitimacy

As we’ve seen in our discussion of religious freedom, and again in our brief discussion of Dobbs and West Virginia, the Robert’s Court is increasingly using “history and tradition” to justify radical new interpretations of law.

I am not even close to being a constitutional law scholar, but as an ordinary person capable of some level of logical thought, I’ve read portions of a few of the Court’s recent decisions and the lack of consistent, clear logic is striking. The dissenting Justices’ opinions affirm this conclusion.

Fortunately, we do have constitutional law scholars who write about such matters. I particularly recommend Professor Laurence Tribe’s article Deconstructing Dobbs, in which he states:

“Whether or not one sees the Supreme Court’s Dobbs decision as barely concealed theocracy, it fails to provide any coherent legal analysis of why the right to abortion is not protected by the Fourteenth Amendment.”

Tribe not only explains why Dobbs doesn’t provide coherent legal analysis but also looks at the illogic of Bruen and West Virginia.

I would be remiss in not mentioning that others take the opposite view, i.e., that Dobbs, for example, rectifies a wrong that was made 50 years ago. For example, the Wall Street Journal article The Supreme Court Reclaims Its Legitimacy by lawyer David Rivkin and Professor Jennifer Mascott, argues that

“Dobbs also marks a path toward restoring the constitutionally prescribed diffusion of powers among governmental branches, undergirded by a system of checks and balances. This uniquely American structure of government is the primary safeguard of individual liberty.”

I hope to convince you below that Rivkin and Mascott have it wrong. Let’s turn to that discussion.

Imperial SCOTUS

In Justice Kagan’s dissent (p. 32) in West Virginia v. EPA, discussed above, she wrote:

“Whatever else this Court may know about, it does not have a clue about how to address climate change. And let’s say the obvious: The stakes here are high. Yet the Court today prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy. I cannot think of many things more frightening.”

This is just one example of many in which the Court is taking power for itself. In this case, it is taking power from Congress, which authorized the executive branch to regulate emissions by power plants, and it is also taking power from the executive branch by dictating the manner in which those emissions can be regulated. As Justice Kagan says, leaving the Court as the arbiter of climate policy is frightening indeed.

Similarly, the Court’s 2022 decision in FEC v. Ted Cruz for Senate (which I described when we discussed the sorry state of our campaign finance laws), continued the Court’s program of removing Congress’ authority to regulate campaign finance.

The Court is even taking power from the lower federal courts. The Court uses the so-called “shadow docket” to make decisions without benefit of waiting for lower court rulings or hearing briefings and arguments. While this may be appropriate in emergency situations, in this past term the Court issued more “emergency” orders than opinions on regular cases.

I’ve only scratched the surface of how the Court is drawing power to itself. New York Times Supreme Court reporter Adam Liptak provides an excellent overview. I urge you to read it.

Liptak refers to Professor Mark Lemley’s article The Imperial Supreme Court in Harvard Law Review, which provides overwhelming but readable evidence of how in the last two years the Court is concentrating power in itself. Liptak also guides us to quantitative analyses that demonstrate how the Robert’s Court is behaving very differently than its predecessors.

Preventing Tyranny of the Majority

Probably like many of you, I was taught in high school that the Supreme Court’s raison d'être is to protect the minority against the “tyranny of the majority.” If Congress or the executive branch, representing the will of the majority, suppressed or harmed the minority, the wise Supreme Court would step in to protect the minority.

How has that worked out? Not well. Here are three prominent examples⁴ from among many:

1. Plessy v. Ferguson (1896): upheld separate but equal separation of the races

2. Buck v. Bell (1927): upheld involuntary sterilization of the “feebleminded”

3. Korematsu v. United States (1944): upheld the removal during World War II of Japanese Americans from their homes to internment camps

Lest you think that this is just old history, consider a few more recent examples:

1. Shelby v. Holder (2013): dismantled Section 5 of the Voting Rights Act, which required certain jurisdictions with a history of discrimination in voting to get pre-approval from the Justice Department or a federal court before implementing changes in voting procedures

2. Rucho v. Common Cause (2019): the Court ruled that it lacks jurisdiction over partisan gerrymandering claims, thus absolving itself of protecting the right to vote in a fair election

3. Brnovich v. Democratic National Committee (2021): the Court rewrote Section 2 of the Voting Rights Act, which prohibits denying voting on account of race or color.

It is hard to see the Supreme Court as the safeguard to individual liberty that Rivkin and Mascott claim.

The Supreme Court has been much more effective protecting another minority — the very wealthy. Professor Nikolas Bowie, writing in the Washington Post says:

“The history of judicial review of federal legislation shows that the principal ‘minority’ most often protected by the court is the wealthy. Wealthy litigants can muster the skills, time, money, influence and capacity to challenge the same legislation over and over in court.”

As two examples, Bowie points to 1895’s Pollock v. Farmers Loan and Trust Co., which threw out a century of precedent to invalidate income taxes (rectified by the sixteenth amendment) and 2010’s Citizens United, which, as we’ve discussed previously, threw out campaign finance laws, vastly increasing the political power of money.

Judicial Review and Democracy

“Judicial review gives any five justices power over the whole government. Why?” — Professor Nikolas Bowie

The Supreme Court’s outsized influence on American life comes from its power of judicial review, its ability to tell the rest of us what the Constitution means and whether or not actions of Congress or the executive branch comport with that meaning.

For something so important, you’d think that the Constitution grants the Court the power of judicial review. Not so. The Constitution says nothing about anything akin to judicial review. (One wonders why today’s fervent believers in originalism are unconcerned about this.)

Judicial review was established by the 1803 Marbury v. Madison case. The details of the case, involving Madison, Jefferson, and John Adams, are interesting, but not relevant here. The Court’s ruling hinged on the Court striking down a section of the Judiciary Act of 1789 as being in violation of the Constitution. This introduced the concept of judicial review to our system.

As Professors Bowie and Daphne Renan explain in their article in The Atlantic, The Supreme Court Is Not Supposed to Have This Much Power, judicial review lay dormant politically until the infamous 1857 Dred Scott decision decided that the federal government did not have the power to abolish slavery. Lincoln’s platform included repudiating this decision, writing in his inaugural address:

“the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, … the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

Lincoln’s Republican Party (as distinguished from today’s Republican Party), in control of Congress during and after the Civil War, passed laws to create for the first time an American multi-racial democracy. Congress stripped the Court of jurisdiction over some important matters, preventing it from undoing the fledgling multi-racial democracy and the post-war Reconstruction.

When the Republican Party lost control of Congress in 1875, the Court began to undo Reconstruction and to allow resurrection of white supremacy in law through Jim Crow laws.

This has continued to this day. As Bowie and Renan put it,

“In the nearly 150 years since Reconstruction, the thrust of judicial supremacy has continued to be revanchist. Through the 21st century, the justices overwhelmingly have exercised their claim of supremacy over Congress to insulate the wealthy and powerful from federal labor laws, federal voting laws, federal civil-rights laws, federal campaign-finance laws, and federal health-care laws.”

Choosing the Justices

If we’re going to allow any five justices to call the shots for the whole country, we ought to understand how the process for choosing the nine justices comports with democratic principles.

Justices are nominated by the President subject to the “advice and consent” of the Senate. The President is elected by the Electoral College, a system that can and does yield presidents who have lost the popular vote.

The President’s nominee must be confirmed by the Senate, a body that is notoriously undemocratic, with, for example, the 40 million people who live in the 22 lowest-population states represented by 44 Senators and the 40 million people who live in California represented by 2 Senators. Viewed another way, the more than half of Americans who live in the nine highest-population states get just 18% of the Senate seats⁵.

So, we cascade a somewhat undemocratically-elected president nominating justices to be confirmed by a wildly undemocratic Senate. And, as we’ve recently learned, the confirmation process is governed by unwritten rules defined by the whims of the current Senate majority leader and his or her political aims.

Hardly a propitious way to choose people in whom we bestow extraordinary power for life.

Summary and What’s Next

History shows us that the Court’s self-proclaimed power of judicial review has served to thwart the will of We the People as expressed through Congress. Moreover, one could argue — as Bowie, Renan, and others do — that judicial review lets Congress off the hook to address our nation’s big questions through the political process.

Instead, too often, we are governed by nit-picking interpretation of a document written more than two centuries ago by a group of wealthy, land-owning, slaveholding, white men who, even as brilliant as many of them were, could not possibly conceive of how the country and the world would change.

Next time, I will discuss proposals for reining in the power of the “imperial” Supreme Court both by changing its jurisdiction and the way in which the justices are chosen.

1. American Crusade: How the Supreme Court is Weaponizing Religious Freedom, page 256.

2. Justices O’Connor, Kennedy, and Souter.

3. I recognize that advocates for forced birth will ask the question “what about the life of the unborn child?” This is not the place to have that debate. I’ll simply remark that in 1992 the Court’s ruling in Planned Parenthood v. Casey introduced the undue burden standard, which prohibits laws that place substantial obstacles to aborting a non-viable fetus. But when the fetus becomes viable — a stage of pregnancy that changes with medical advances — Casey allows states to prohibit abortion. Many believe that Casey strikes a sensible balance between the rights of the pregnant woman and the preservation of unborn life.

4. These are among many cases discussed in Erwin Chemerinksy’s 2014 book The Case Against the Supreme Court.

5. These two characterizations come from Two Senators per State: A Recipe for Minority Domination, by Douglas J. Amy.