Several 2020 candidates are determined to mainstream the perverse idea of expanding the Supreme Court to achieve policy victories. Such court-packing defies the intent, function, and ideals of the American judiciary.
Americans have been told a lie about the constitutional balance of power. Despite activist assertions to the contrary, the Supreme Court is not a supreme constitutional council with the sole and final say on legal matters. We have accepted a larger than life picture of the judiciary, and it is slowly destroying individual liberty and the constitutional order laid down by the founders.
The Constitution outlines the role of the courts, but for some time they have been operating beyond their proper function. We must change how we see them, understand their appropriate role, and stop allowing the growth of power. Each new interpretation of plain text that widens the judiciary’s authority is a dangerous violation of the separation of powers. If executive overreach concerns you, judicial overreach doubly should.
To correct a few common misconceptions, the judiciary’s rulings are not the supreme law of the land, even rulings from the Supreme Court. The judiciary is not the only or even final arbiter on the Constitution. And the judiciary is not a truly co-equal branch of government.
Court Opinions Are Not Supreme Law
Article VI of the Constitution describes what qualifies as the law of the land.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…
The only national laws are the Constitution, congressional law, and treaties. Conspicuously missing are Supreme Court decisions. While the court is known for deciding the constitutionality of laws, its decisions are not themselves laws. In the strictest sense, the opinions rendered by the Supreme Court are binding only on the parties before it.
The Supreme Court is just that, a court. It was established to adjudicate cases and controversies before it. Courts cannot make general pronouncements of law; they exist to settle disputes.
In fact, the Supreme Court is prohibited from issuing advisory opinions or ruling on laws that do not arise through litigation. Justices are not consultant scholars but arbiters in the limited setting of a legal case, not general legal or public policy matters. Courts issue their rulings in the form of judicial opinions, laying out the holding and the rationale.
Holdings are decision on legal issues, and the commentary around it is history, legal reasoning, or dicta. Sometimes dicta matters and sometimes it is pontification. That is, not all of an opinion is legally binding, and what is binding is a settlement of a particular, and often limited, legal issue.
Supreme Court opinions are commonly viewed as the law of the land because they often involve decisions on the constitutionality of government actions. We assume when the high court rules, it is articulating what the Constitution says. The Constitution is the supreme law, but it is also a plain text. That text is the law, the ruling is not. As Justice Story said of judicial opinions in Swift v. Tyson, “They are, at most, only evidence of what the laws are, and are not, of themselves, laws.”
Further, if the Supreme Court rules one way, it is likely to rule that way again, so continuing to push a law or policy that contradicted a previous decision may be futile. The precedent the court sets effectively prevents the same issue from arising, because lower courts will rule in accordance with that precedent.
Still, what the Court produces is not law, but a determination on how it interpreted an existing law for the purpose of settling a specific case or controversy. When the same issues and facts arise, they can be settled based on that precedent. These rulings are legitimate and important, but are not the final word on policy matters for the whole country.
Supreme Court Not Final Arbiter
For all its power and influence, the Supreme Court is still just a court. It cannot decide which laws to rule on, because it can only make decisions about the case before it. It cannot revisit old cases unless new parties bring a similar issue before it. It cannot make unsolicited rulings nor advise on constitutionality to the President or Congress. Despite our modern picture, the court sits in judgment of cases. It is not a philosophical reservoir of wisdom.
It is not even the exclusive entity with the power to interpret the Constitution. Madison wrote in Federalist 49, “The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.” Thomas Jefferson further noted in a letter to William Jarvis, “to consider judges as the ultimate arbiters of all constitutional questions…would place us under the despotism of an oligarchy.”
It is clear from the Constitution itself and the founders’ writing that each branch can and must interpret the Constitution and its own powers. Jefferson also explained why the courts deal in constitutional interpretation the most, writing: “judges certainly have more frequent occasion to act on constitutional questions, because…the great mass of the system of law, constitute their particular department.” It happens to be their work, but that does not grant them exclusive or ultimate power over it.
When legislating, Congress debates whether prospective legislation is constitutional, and the president makes a similar determination about whether to sign or veto. In unilateral action, the president interprets his authority and the constitutional framework. Article II Section I requires the president to swear an oath to “preserve, protect and defend the Constitution of the United States.” How else can he do this without interpreting it? Indeed, his loyalty is to the Constitution itself, not necessarily the opinions of the Court or certain laws of Congress.
Because each branch relies on the others to carry out their directives, the judiciary cannot enforce its rulings. That is up to the executive. When the judiciary rules, the president may have a different view and theoretically choose not to legitimize quasi-legislative action by not enforcing the court’s decision. The prudence of this depends on the circumstances, and while institutional legitimacy is best served by following court orders, objectively illegitimate ruling may demand rejection. Consider Dred Scott or Plessy v. Ferguson.
The Supreme Court Is Not Co-Equal
The three branches of government are often described as co-equal, each with powers that check and balance perfectly. They are equal in constitutional legitimacy, but not in power. The American judiciary was initially conceived to be the least powerful. The Constitution even describes it last and shortest among branches.
The courts are not intended to legislate, execute, craft, or decide policy. They are meant to provide citizens an avenue for recourse to reconcile wrongs for which they have causes of action. Explaining the role of the judiciary, Alexander Hamilton wrote in Federalist 78 that the judiciary would possess “neither force nor will, but merely judgment.” He goes on to say, “It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power…”
The judiciary holds one small but distinct power. If the Framers were not so keen on separation of powers, the judicial power may have been included with the legislature or executive. Rather than this, they placed the small power in its own branch, not to empower judges over legislators or citizens, but to prevent abuse of justice by the other branches. It is independent because the small authority is important, not because the duty requires or instills great power.
When written and ratified, the Constitution only called for a judiciary made up of one supreme court, on which only one chief justice was required. It was not conceived as a large or powerful branch of government, but an institutional check on the others compactly maintaining the judicial power of the United States.
Of course the judiciary is larger today, and its growth has mostly been legitimate by deliberate congressional action. But the minimal scale and scope of the constitutionally mandated judiciary shows it was never conceived of as a body laying down the law of the land on policy position and impacting the entire country.
Growth through acquiesce should be viewed with great skepticism as a violation of separation of powers. And certainly growth through packing the Supreme Court with additional justices should be abhorrent to liberty-loving Americans.
The Courts Should Be Respected, Not Praised
It is past time to clarify what the American judiciary is and how it was intended to operate. The courts are legitimate and necessary, but are not meant to create or shape policy. They were designed to settle disputes, and that means ruling for the parties before them.
The national obsession with the Supreme Court, and accompanying acceptance of its power grab, is anti-republican. If we continue down this road, our politics will grow uglier as fights to replace justices become further embittered, and our law will be held captive by an oligarchy.
We have grown to view the court as a body of philosopher kings rather than civil servants who settle specific arguments. Rulings from the Supreme Court should not affect the whole country–and certainly not rulings from district courts.
You don’t go to the courts to solve general matters; for that, you go to the legislature. You go to the court to resolve particular disputes. For the health of the nation and the rule of law, it is critical that we stop using courts as weapons to shape law and view them as avenues of recourse to resolve limited cases and controversies.