While abandoning some of their proper role, courts have also usurped the powers normally reserved to Congress. The legislative process is notoriously messy, and nobody thinks the sausage factory produces a perfect product every time. So when a judge is faced with a law that seems to function poorly, there is a temptation to step in. The legislators appear sloppy or foolish or, if it is an old law, blinded by the prejudices of their time. A nip here, a tuck there, and the law will function so much better. But the Constitution doesn’t establish the judiciary as the copy editors of the legislature. They are supposed to apply the law, not improve it.
There is a saying among lawyers that “hard cases make bad law.” It arises from the natural instinct of the judge or jury to bend the law to reach the result that their heart tells them is right. But in the bending, the law is deformed, and ever more pronounced departures from the original language follow.
Much of the temptation for courts to correct, rewrite, update, or amend statutes, and even the Constitution, arises from the perception that change through the proper channels is not feasible. Many legislators are content for the courts and the agencies to do their hard work for them. But some legislators also welcome judicial editing of the law to implement policies that do not have the broad support necessary to make it through the legislative process. When Senator Klobuchar questioned Judge Neil Gorsuch during his confirmation hearings about his ruling that the Religious Freedom Restoration Act (RFRA) covers corporations, he carefully explained the federal Dictionary Act, which defines “person” as it is used in federal legislation, and pointed out to the senator that if she thought the statute’s coverage of corporations was a bad idea, it was her job as a legislator to remedy that: “Senator, if in RFRA again, if this body wishes to say only natural persons enjoy RFRA rights, that is fine, and I will abide that direction. I am not here to make policy; I am here to follow it.”35
In fact, the Democrats did try to amend RFRA, but the effort went nowhere. To some, that is precisely the kind of situation in which the courts should intervene to implement the “correct” or “just” policy that politics failed to achieve. But however frustrated a minority of the Congress and the country may be with RFRA, those frustrated persons are still just that—a minority. If the majority of the country doesn’t want to change a valid law, the Constitution does not give the courts authority to second-guess it.
Sometimes Congress has exercised its authority to change a law after the Supreme Court has recognized that judicial fiat is not the constitutional means to do so. When Lilly Ledbetter, shortly before her retirement, sued her employer for paying her less than it paid her male counterparts, her action was found to be barred by the statute of limitations. When the Supreme Court held that the statute required her case to be dismissed, the political reaction was immediate and hysterical.36 The majority was excoriated for not fudging the statutory deadline in Ledbetter’s favor. In this case, however, the desired change had the support needed for legislative action. Congress passed the Lilly Ledbetter Fair Pay Act of 2009, which starts the limitation period over with each new paycheck. That’s exactly the type of response our system is designed to produce. Congress wrote a law. When the Court applied it as written, a new Congress wanted a different result and amended the law.
The same solution is available for constitutional disputes. Unhappy with what the Constitution says about speech, guns, abortion, or the scope of federal power? There’s an amendment process for that—intentionally difficult, but not insurmountable. The Constitution has been amended more than two dozen times, and it could be amended again if an issue were sufficiently important to the American people. It is no answer to say that causes that cannot garner the support of a broad majority of Americans should instead be enacted by a bare majority of unelected judges.
The notion that judges are competent to make even small improvements in the law leads almost imperceptibly to a much more expansive agenda. Once the judge is unshackled from the text set down by the people’s elected representatives (or their unelected regulators), he will wander wherever his own judgment leads him to implement the stated or even unstated intent of the law.
This flexible legal approach, applied to the Constitution, has resulted in the creation of broad new rights uncontemplated by those who framed and ratified the original document and its amendments. These new rights, in turn, have increased the range of activity governed by federal law. The influence of federal law, and of the courts that interpret that law, is therefore greater than it ever has been in history.
As the unelected bureaucrats of the burgeoning administrative state exercise de facto legislative power, the only remaining constraint on them is constitutionalists in the judiciary. At the same time, activists on the left cajole the judiciary to impose their favored policies—including revolutionary social changes—by an “exercise of raw judicial power,” as Justice Byron White described it, and since the Warren Court era, liberal judges have been happy to oblige.37
Is it any wonder, then, that the stakes in judicial appointments, especially to the Supreme Court, have become so high? Rather than being “the least dangerous branch,” as Alexander Hamilton predicted, the judiciary has become the forum where philosopher kings impose the final decision in our most divisive political and social disputes.38
Justice Scalia, observing the ever-intensifying confirmation process for Supreme Court justices in 2012, explained that the process has become more political because judges have become more political:
[A]s much as I dislike the spectacle of—of confirmation hearings now, I prefer them to the alternative. As long as the court is revising the Constitution, by God, the people ought to have some say and they ought to be able to ask the nominee, you know, what kind of a Constitution are you going to give us? That’s the most important question. Why shouldn’t they be able to ask that? So you know, I don’t like it, I would like to go back to the old system, but not if the Supreme Court is rewriting the document.39
Among the many issues on the liberal wish list that cannot be achieved through democratic means, one in particular motivated the opposition to Kavanaugh: abortion. It loomed over the entire confirmation process—from the nationwide speaking tour “Rise up for Roe” to the laser-like focus on the two Republican senators who support abortion rights, Collins and Murkowski. Planned Parenthood and NARAL were there every step of the way, financing protesters, TV ads, and celebrity appearances.
The nation’s abortion regime is dependent on the Supreme Court’s decision creating a federal constitutional right to abortion. Without that intervention, it is almost certain that a nationalized abortion law would never have been achieved through the democratic process, whether through a constitutional amendment, legislation in each of the fifty states, or a federal law mandating abortion on demand. Accordingly, a vocal, lavishly funded segment of the left has staked everything on upholding Roe v Wade. It is a cause of such overriding importance that no means of sustaining it, not even the idea of tearing down an honorable man with scurrilous and unverified stories, can be ruled out.
Ironically, Roe stands as a key example of the serious damage done to the country when courts stray from the rights actually protected in the Constitution. Justice Ginsburg, herself an avid defender of the right to abortion, was nonetheless critical of Roe not because it amounted to legislating from the bench, which she acknowledged, but because it moved too quickly. From her perspective, the decision to “ste[p] boldly in front of the political process” was wrong not in itself but as a prudential matter because it “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.”40
It may be that slow-motion legislation from the bench would have provoked less opposition than the one-fell-swoop decision of Roe v Wade did. But people’s bristling at having major issues removed from public debate by unelected judges is evidence of an instinctive American recognition that such activism runs
counter to the rule of law. After all, if the people have no recourse from judicial alteration of our laws and Constitution, what remains of our representative system of government?
Another problem with constitutionalizing important issues is that it undermines the federalist structure of the Constitution and the American nation. The framers established a federal government with limited powers on the foundation of preexisting sovereign states. While the Constitution does federalize certain rights, expanding their number and scope without popular consent turns our federal structure into an all-or-nothing system, which raises the stakes for every decision. If abortion were still governed by the states, there would likely be a range of laws throughout the country. There would be room for the experimentation and balancing that the Supreme Court foreclosed. People could vote with their feet. Each legislative or legal battle over abortion would be geographically limited. While such a system slows down change in either direction, it also puts it much closer to the people themselves and the fundamentally American ideal of self-governance.
Whatever happens to Roe, there is good reason to believe that a conservative majority on the high court would roll back at least some of the liberal excesses of the past few decades and, at the very least, prevent an activist federal judiciary from imposing new liberal policies on America by fiat. After Kavanaugh, the brightest lights in the Democratic Party are not hiding their desire to regain control of the Supreme Court by any means necessary, and “packing” the Court has become a serious topic of discussion on the left.
Attempts at court-packing are simply history repeating itself. While the number of justices on the Supreme Court varied in the early years of the republic, it has been fixed at nine since the Judiciary Act of 1869. “Court-packing” entered the political lexicon in 1937 when President Franklin Roosevelt, frustrated by a Supreme Court that had declared key components of his New Deal unconstitutional, proposed the Judicial Procedures Reform Bill, which would have allowed him to appoint as many as six additional justices. Even a president as popular as FDR could not get away with such a naked power grab, and he failed to get the bill through a Congress controlled by his own party.
The historical consensus is that Roosevelt’s court-packing plan ultimately gave him the Court he wanted, albeit indirectly. Congress passed a watered-down version of Roosevelt’s bill, which left the Court at nine seats but allowed justices who retired to receive full, rather than one-half, pensions.41 Four justices stepped down within the next four years, and two more died in the same period, giving FDR his opportunity to remake the Court.
But the most memorable development on the Court was the sudden change in Justice Owen Roberts’s voting. Roberts underwent a conversion of sorts in his constitutional views and began voting to uphold Roosevelt’s agenda in what has been dubbed the famous “switch in time that saved nine,” on the assumption that his vote changes were made because he was attempting to head off the president’s changes to the composition of the court. (Although that conventional wisdom has since been called into question.)42
A justice who allows the president’s political maneuverings to change his vote does not show his independence. He shows that justices can be manipulated. Democrats who are agitating for a change on the Court now may be making the same calculation, hoping that some justices may still be susceptible to outside pressure. It seems clear that increasing the size of the Court would not only shift it dramatically and immediately to the left but would trigger retaliation that would make the Court more a political football than it already is. By holding the Court hostage, left-wing activists hope to convince at least one justice to move to the left, obviating the need for drastic action.
Unfortunately, this tactic has worked at least once before with this Court. In 2012, when a constitutional challenge to the Affordable Care Act, President Obama’s signature legislative accomplishment, was before the Court, the initial vote of the justices was to strike down the entire law because its requirement that all Americans purchase health insurance, on penalty of a fine—the so-called “individual mandate”—violated the Commerce Clause. But Chief Justice Roberts was uneasy with the prospect of the Court’s making such a major change to the health care law and feared it would be blamed for the likely fallout in the insurance markets. The media, senators, and even the president were also previewing arguments they would use if he voted to overturn the law, calling it partisan and activist and a blow to the Court as an institution.
Behind the scenes, the chief justice negotiated a deal with Justices Kagan and Breyer. They would vote to overturn the law’s expansion of Medicaid, contrary to their own reading of the statute, in exchange for his upholding the individual mandate as a tax.43 Both inside and outside the Court, the assumption was that he had buckled under the pressure.
Whatever Chief Justice Roberts’s reasons, the result was not an improvement in the Court’s reputation. Pew reported that after the decision the Court remained at its all-time-low 52 percent approval rating. The accepted narrative, even among those who welcomed the chief’s decision, was that he changed his legal position not on principle but in response to public pressure. The right lost respect for him, and the decision won him no friends on the left, which still portrays him as unforgivably conservative and a craven political operative.44 It was a regrettable outcome for anyone concerned about the legitimacy of the Court. Some of the people responsible for putting Kavanaugh on the Court hoped that if he were tempted to modify his position in hope of adulation, he would know it leads to scorn.
The media tend to confuse the legitimacy of the Court with respect for the Court, but there is a difference between the two. Acting according to law is the essence of legitimacy in a legal sense, while “respect” is a sign only of social legitimacy in the eyes of the public. The problem with attempting to build social legitimacy is that it can easily devolve into a popularity contest.
The media regularly and shamelessly suggest that Supreme Court cases decided along partisan lines will undermine the legitimacy of the Court—or at least that’s the suggestion when the arguments of conservative justices prevail. But the media’s repeated attacks on the legitimacy of a court controlled by constitutionalists has almost become a self-fulfilling prophesy. If they continue to criticize the court, should anyone be surprised that the public’s faith in the Court’s legitimacy is waning?
But legitimacy is not the same thing as popularity. The framers knew that good judges would not always—or even often—be popular. That’s why they gave them life tenure. They knew that the Court’s true legitimacy derives from its freedom to make decisions in accordance with law, not in its reaching decisions that will win favor.
Make no mistake, the smear campaigns against judicial nominees are themselves an attack on the Court’s legitimacy. Even if they don’t prevent a justice’s appointment, they are a tool to delegitimize him after he is on the Court. A case in point is Justice Clarence Thomas. At the time of his confirmation, polling showed a substantial majority of Americans—black and white, male and female—believed him over Anita Hill. But the campaign against Justice Thomas never stopped. For a quarter-century, the refrain in the media and in legal academia has been that Clarence Thomas’s guilt is simply a fact of history.
A similar campaign is already underway against Kavanaugh. The impeachment talk will continue, although it will likely never amount to much because the underlying claims are so baseless. Glowing stories are being written about Christine Blasey Ford. She was listed as one of Time’s “100 Most Influential People” of 2019, along with politicians, athletes, and movie stars. She introduced Rachael Denhollander, the gymnast who brought the USA Gymnastics sexual abuse scandal to light, as Sports Illustrated’s “Inspiration of the Year.” The publicity stunt disgusted politicians as temperamentally divergent as President Trump and Senator Collins. The man who abused Denhollander and hundreds of other girls pleaded guilty and is in prison for the rest of his life. It is unconscionable to compare the two stories, as
if Ford’s accusations were similarly credible.
And for all the hysteria, there is still no indication that anyone on the left is walking away from the Kavanaugh confirmation chastened by the electoral consequences or determined to prevent more damage to the credibility of the judiciary. Although Justice Kavanaugh’s investiture was a celebratory moment, there was an ominous note. When the justices took their seats behind the bench, one was missing. Ruth Bader Ginsburg, at eighty-six the Court’s oldest member, was in the hospital. She had fallen the day before, breaking three ribs. Her doctors then discovered a cancerous mass in her lung, her third bout with cancer.45 She has beaten cancer twice, and doctors say the latest treatment was a success. She has no intention of stepping down. But sooner or later there will be another vacancy on the Court, whether it is her seat or another justice’s.
It’s hard to imagine how a confirmation battle could compete with Kavanaugh’s for ugliness. But if the next appointment portends a major ideological shift, it could be worse. When President Reagan had a chance to replace Louis Powell, a swing vote, with Bork, Democrats went to the mat to oppose him. When Thurgood Marshall, one of the Court’s most liberal members, stood to be replaced by Clarence Thomas, the battle got even uglier. And trading the swing vote Sandra Day O’Connor for Alito triggered an attempted filibuster.
As ugly as Kavanaugh’s confirmation battle became, he is unlikely to shift the Court dramatically. Except on abortion and homosexuality, Justice Kennedy usually voted with the conservatives. If Justice Ginsburg were to retire while Trump was in the White House, the resulting appointment would probably be like the Thomas-for-Marshall trade. Compared with what might follow, the Kavanaugh confirmation might look like the good old days of civility.
Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court Page 33