…a delicate mix.
As readers well know, this blog focuses primarily on economic policy and monetary issues, but policies are not made in a political vacuum. The legacy of the post-60s period in American politics has been distilled down to momentous Supreme Court decisions, which have become the tail that wags the dog of our collective lives. But politicizing court decisions is not really the way “rule by the people” (democracy) was meant to work. No wonder our democracy has become so dysfunctional: as we raise irreconcilable issues such as race, abortion, and sexual preference to the level of national politics, we become divided by emotions or distracted by ‘bread and circuses.’ Meanwhile, the political class runs the government in their own narrow interests. We the citizens become the losers by our own design. Whether winning or losing in this judicial lottery, nobody should be real content with the present state of affairs.
From the WSJ:
Our Rights, Not the Court’s
There’s no good reason to give the justices the last word on race, abortion and gay marriage
Reacting to this past week’s Supreme Court decisions, a conservative law-school colleague told me, “Law matters in the Supreme Court from October to May, not so much in June.” Politics takes over in June, and the Supreme Court becomes a super-legislature, deciding by majority vote what our constitutional rights are.
“Deciding” is the right verb. In June, no serious observer of the Court can think that the justices are just “calling balls and strikes” or interpreting the Constitution’s words or telling us what most people understood the words to mean when they were placed in the Constitution.
But if the justices are deciding rather than interpreting, why should they be the ones to decide, substituting their decisions for ours? The usual explanation is that we can trust them to do the right thing—and we can’t trust ourselves.
After all, some of us think that affirmative action promotes constitutional rights; others think that it violates them. Some of us think that the Voting Rights Act promotes, well, voting rights; others think that it violates the structural principles that make our government worth having.
We usually use our legislatures as the forum in which to discuss and resolve such differences. We call that “politics,” and for lots of issues (tax rates, spending programs, declaring war), we think that politics, with majority rule, works well enough.
So why don’t we use these same institutions for hot-button constitutional issues like abortion rights, gun rights and affirmative action? In these cases, we let nine other people decide, by majority vote, what they think our rights are. That majority vote then becomes “constitutional law.” The great puzzle is, why do we let them get away with it?
Consider the Supreme Court’s decisions this past week. Conservatives liked the rulings upholding property rights, limiting affirmative action and striking down a key element of the Voting Rights Act. Liberals liked the decisions striking down the federal Defense of Marriage Act and allowing California to have gay marriage. Only a few people, though, think that this mixed bag of results should lead us to rethink the whole system. But it should.
What justifies giving the Court the last word on our constitutional rights?
The most common answer is to say that legislatures don’t do a good job of protecting minority interests. Liberals think that Congress messed up in enacting the Defense of Marriage Act, failing to protect the interests of gays and lesbians. Conservatives think that it messed up in re-enacting the Voting Rights Act, failing to protect the sovereign equality of states. And so on down the line.
But the Voting Rights Act shows that Congress sometimes does protect racial minorities. And though gays and lesbians are clearly a minority in the country, the rapid spread of legislative recognition of gay marriage shows that some legislatures can protect their interests too.
Another common view is that, though conservatives and liberals like some decisions and dislike others, they all hope that the justices will get it right eventually—becoming conservative or liberal across the board. Everything will be fine, they think, if only the justices get their heads straight about the Constitution.
But there is no reason to think this is going to happen. Maybe if we get a long run of conservative or liberal presidents, enough new justices will be appointed to make the Court consistently conservative or liberal. That happened with the Warren Court, for example. But the Court didn’t become consistently conservative even with Republican presidents appointing every justice from 1968 to 1994.
A third perspective is purely strategic. Pick your favorite policy outcomes, and then do a complicated calculation. For each issue, ask, “How likely is it that I will win in the legislature and have the courts uphold my victory? How likely is it that I will win in the legislature only to have the courts snatch my victory away? How likely is it that I will lose in the legislature but get the courts to give me what I want?” Then weight each issue according to its importance to you. Finally, add everything up. If, on balance, you get more of the policies that you like from letting the courts oversee the legislature, you should be for judicial review. Otherwise, you should oppose it.
I think that this is an entirely sensible way of deciding whether you like judicial review or not. But I don’t think anyone actually goes through the calculation, which is maddeningly complicated.
A final perspective would be to resign yourself to the status quo, take your victories when they come and live to fight another day when you lose.
This might make sense, at least if you’re not completely annihilated on the battlefield. The Court usually does leave paths open to renewing the fight in ordinary political arenas. Voting rights advocates can try to get Congress to enact a new coverage formula. Defenders of the traditional family can try to get Congress to enact more precisely targeted restrictions on benefits for people in gay marriages. But why should they have to bother? They won these battles once, and the only reason they have to re-fight them is that five justices thought they were wrong about who had what constitutional rights.
Some scholars say that all of this is no big deal because, if we put aside some short, anomalous periods, the Supreme Court never gets too far out of line with the national majority. But if this is true, what’s the point of judicial review? To police those states that depart from national views? To cleanse the statute books of antiquated laws that no longer have majority support?
Maybe. But note that this is not what happened in last week’s decisions. The Voting Rights Act was re-enacted in 2006, the Defense of Marriage Act was adopted in 1996, and affirmative action has lots of supporters today.
If judicial review is a problem, what can we do about it? I’m fond of a Canadian innovation that Judge Robert Bork also found interesting: Let the justices strike down statutes they think are unconstitutional and give their explanations. Then let Congress respond. If a congressional majority agrees with the Court, the decision stands. But if a majority thinks that the Court got it wrong, Congress can override the decision.
I, for one, would welcome a chance to engage in constitutional politics. My own policy views are so eccentric that I can’t count on any justice to reflect them consistently. I’d rather take my chances trying to persuade my fellow citizens and representatives to agree with me.