The Supreme Court’s Power Has Become Excessive

“You must vote,” I often hear, “because the next president will pick who sits on the Supreme Court!” That such a statement should even be made tells us that something has gone seriously wrong with our democracy. Certainly the Supreme Court has a role in American government, but not the overblown one it has come to play.

Liberals are happy with the court right now, because they got some big wins in June. I happen to like those outcomes, too, but I don’t understand why progressives would overlook how the court has systematically done its best to undermine everything they care about for the past 40 years — as it likewise did for the first 150 years, until the Warren Court flipped things around for a short time in the 1950s and 60s. Plus, the outcomes last week could just as easily have gone the other way, and then what? Do same-sex couples think they had no rights before the Supreme Court spoke, and have rights after only because five justices said so? What if Justice Kennedy had woken up on the other side of the bed the day the court ruled?

This is not a left/right point. It’s a point about how the meaning of our Constitution should be finally determined. Is it really the case that the fundamental law of the land, made by “We, the People,” depends on the ideologically driven whims of five lawyers?

There is a place for judicial review in constitutional democracy, just not for judicial supremacy. The idea that the justices have final say over the meaning of our Constitution — that once they have spoken, no matter what they say, our only recourse is the nearly impossible task of amending the Constitution or waiting for some of them to change their minds or die or retire — ought to offend anyone who believes in democratic government.

It rests on a myth: that the court needs this overweening power to protect minorities. Yes, the court has occasionally done so, but much more often it has done the opposite. Time and time again, we have seen it take political movements and legislation to get rights and make them secure. Virtually no progress was made on race, after all, until Congress enacted the Civil Rights Acts of 1964 and 1965 — laws the Supreme Court has been working hard for years to weaken and destroy. That the people who wrote and ratified our Constitution wanted or expected the court to have such power is a fairy tale. They emphatically did not fight a revolution to replace a monarchy with an oligarchy.

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