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Power and the Supreme Court

The dangers of judicial activism.

by James Leroy Wilson
January 10, 2001

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Power and the Supreme Court_James Leroy Wilson-The dangers of judicial activism. Alexander Hamilton wrote that the courts have neither the power of the purse nor of the sword, and therefore are the least dangerous branch of government. But the power of the pen might be the most dangerous of all. Tyrants can ruin lives, but bad ideas can ruin several generations. And that is why the Right is generally against what is called "judicial activism," of judges striking down laws, inventing new rights, and making policies. It's for the same reason the Right distrusts central government itself.

Conservatives and libertarians are frequently accused of trusting the private sector and local government too much. I don't see it that way. It's not that I trust the private sector, but that I distrust central power. Every real or imagined evil that can be produced by laissez-faire capitalism, such as environmental degradation, unprotected workers, and inequality, can be and have been surpassed by unlimited central government, which can also produce a host of other evils capitalism doesn't produce, like genocide and famine. So it's not the case that humans looking out for themselves will necessarily yield good results, it's just that if humans can't be trusted in the private sector, why should they be trusted in the public sector? Private sources of power do exist and they can be abused, but they are not nearly so great nor can do nearly as much damage as the government. And smaller, local government can produce tyrannical laws and unjust policies, but better these be kept at the local level than imposed on the entire nation.

Issues of power, which are issues of liberty, must therefore be resolved before settling issues of justice or morality. Saying "This is right" or "That is unjust" is one thing; enforcing the judgement is another. If we give a branch of the government new powers in order to eliminate a particular evil, it can abuse the precedent later on.

This is why constitutional government is so important. Limited, decentralized government best protects the people from foolish or tyrannical policies. When we stray from the Constitution, we place ourselves in peril by trusting the supposedly good intentions of our leaders. That the United States has a socially mobile consumer society is not, by itself, a justification for greater powers for the federal government. Nor is it the case that federal workplace regulations and welfare programs are constitutional just because the Supreme Court has not said otherwise. The more the federal government grows, the more we are dependent only on it, instead of on other, local social institutions including the family and church. And dependence on just one institution is the exact opposite of liberty. It's a master-slave relationship.

The Court is in fact partly to blame, if not mainly to blame, for our bloated federal government. Ironically, this is because it has asserted for itself the right of judicial review, of striking down unconstitutional laws. Supposedly a check on the tyrannical designs of the political branches of government, this power is unnecessary and corrupting. It is unnecessary because striking down unconstitutional laws is the job of the President, who has veto power over all bills passed by Congress. And the President, along with members of Congress, has limited terms and can be replaced. So do all state legislators and governors. In short, the people themselves have the power to unseat those who violate the Constitution.

But we don't, because we've been corrupted. By making itself the ultimate interpretative authority over the Constitution, the Supreme Court absolves the rest of us of responsibility. We the people have been led to believe that the Constitution is a sophisticated legal document that only trained elites - lawyers - can interpret. Not true. The Constitution is instead a compact, a political charter, written and ratified by politicians to preserve the states through stronger union. Interpreting laws under it is the job of the courts, but judging the constitutionality of our laws is a political act best left to politicians. By letting federal judges do this work for us, we have let ourselves wallow in ignorance, not even knowing what the Constitution even says.

And that leads to a bigger federal government. We are led to believe that if the Supreme Court doesn't stop it, it must be okay: since the Supreme Court has not stricken down Social Security, minimum wage laws, drug possession laws, or the National Endowment for the Arts, these must be constitutional. Nevermind what the Commerce clause or the Ninth and Tenth Amendments actually say. You eat your pork and I'll eat mine.

The flip side of enlarging the federal government is the destruction of legitimate powers of state and local government. The Courts have taken the lead in this as well. At the expense of our founding principles, we let federal judges micromanage state and local government like imperial governors. One can not read the Constitution and conclude that it compels state and local governments to obey the same First Amendment restrictions placed on Congress. We only think that way because the Supreme Court has said this is so, and it sounds good. It sounds good until we conclude that proper policing and decency in public places is even more desirable.

Prayer at Texas high school football games, strip club regulations in Indiana, prohibitions on flag burning or Klan marches, school voucher plans in Ohio - poses no threat to the freedoms of people in other states. But when federal courts strike down such traditions, laws, and programs, they are limiting our own freedom to work to improve our own communities and states. What do losers over a controversial bill do these days? Instead of coming back the next year work to change the law, they take the case to federal court. Why persuade the people and their representatives when you can persuade a few unelected, life-tenured judges?

An ignorant citizenry, big centralized government, state sovereignty destroyed. A broken Constitution. These are legacies of judicial review. To all Democrats who are shocked and outraged that the Supreme Court settled the Presidential election for George W. Bush, to all Democrats expressing alarm about a politicized judiciary, I say, Where have you been?. When we allow people to wield power they're not authorized to have, we set precedents that we will regret The Supreme Court is a political institution, has been for at least a century, and will continue to be so unless there is a revolution in American political thought.

Assuming that won't happen in the next four years, I would advise President-elect Bush to be safe with all judicial appointments. Appoint qualified, moderate women and minorities. Conservative ideologues on the Court haven't and won't solve the core problem, and will only mobilize the Left for political war.

Only legislation curbing the Supreme Court's power will do the trick. My hope is that this will come soon.

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