Constitutionalism and its Discontents: the Persistent Myth of Judicial Supremacy

Faced with a Supreme Court decision cutting against their political agenda, the tendency of American conservatives to critique the judiciary as a whole, rather than only the decision, is a peculiar and modern invention. We hear how justices are “supremacists,” overturning the lawful will of the people. This amusing little turn of phrase has now been taken far. Pundits push for the Congress to “withdraw jurisdiction” from the courts, literally ending judicial review and terminating the supervision of a coequal branch of government. By cutting the Supreme Court out of the loop, in theory a ruling majority could do as it pleases. This drastic measure – although legal – is a “nuclear option” that effectively puts politics above the law. Luckily, withdrawal of jurisdiction as a way to to promote major political agenda items is not being advocated by any serious people. But there are other problems.  Although serious people don’t advocate cutting the Supreme Court – and thereby the law – out of our political life, some serious people are using rhetoric that implies that conclusion.

Recall Terri Schiavo: when a line of judges refused to order a dead woman kept alive, the evangelical wing of the Republican Party whipped itself into a furor, particularly against the judges who failed to “fall into line” with the Republican agenda.  Recall Tom DeLay, referring to the judges:

The time will come for the men responsible for this to answer for their behavior.  We will look at an arrogant, out-of-control judiciary that thumbs its nose at Congress and the president.

And now for a reprise on that familiar theme, let’s hear David Rivkin, formerly of the Bush Justice Department, on the recent Guantanamo case:

But to be honest, and not to be too dramatic, it’s one of the worst decisions by the Supreme Court I’ve ever read, on par with Dred Scott decisions and Plessy v. Ferguson.  The reason for it is not because of its practical implications; they’re quite modest. But the sheer ambition, the sheer judicial arrogance that you see here. Let me briefly explain why.

Apparently, when the law decides against the political branches, it is itself becoming political.  These angry men are precisely missing the point of having a Supreme Court: the point of having those nine men and women sitting in their fancy chairs is precisely so that the political branches don’t always win.

Democracy as a concept works wonders for the majority.  It empowers it with the political tools to enact its will, in theory, over that of a few governing elites.  But democracy is also notoriously shortsighted, and dangerous to “discrete and insular minorities” who, for whatever reason, may be unjustly despised by the majority.  For precisely this reason, we pre-commit ourselves to an enumerated set of values, and let them function as brakes, to keep the majority from running roughshod over the minority, and to keep the majority from accidentally selling its nation down the river.

When democracy works – if democracy works – the elected branches will not get their way 100% of the time.  The Constitution is meant to act as a brake on runaway government.  How that brake functions – as in, on a case-by-case basis – may be criticized, but to criticize the brake itself is to effectively call for the dismantling of the checks and balances system upon which our democracy rests.  Democracy without law, after all, is little more than a mob.