The Court Is Not Your Friend

Abstract

The Court Is Not Your Friend Samuel Moyn (bio) It has been over a year since Brett Kavanaugh took his seat on the Supreme Court. More evidence of his assault of Christine Blasey Ford, though by no means conclusive, has been presented in the first of several slated books about the newest oracle of the law and the pitched battle around his confirmation. Yet such attention to any justice, and his ideology or indiscretions, risks missing the point: that it is only because the Supreme Court is so powerful that the national obsession with either a judge's character or views can become so intense. Whatever else it involves, juristocracy is also a form of politics by other means. And it is not one that progressives should want. Yet in the past half century they have been principally responsible for it. From its late nineteenth-century conservative beginnings to the mid-twentieth-century liberal attempt to make it their own, juristocracy has been a triple failure of authority, process, and substance. It has been a disaster for the democratic premise that the people themselves choose their own arrangements, shunting decision-making to a council of elders supposedly possessed of unique wisdom. And in exchange for its antidemocratic premises, juristocracy has not delivered the goods that popular interests and needs require. Only democratic politics can. We will always have judges. Any interpretation of law is a form of rule, and there is no way—contrary to what many of the founders believed—of disentangling "judgment" and "will." It is for that reason that democrats from Jeremy Bentham (or even Thomas Hobbes before him) through our time have attacked interpretations of judicial power that conceal the ideological choices that saying "what the law is" inevitably involves. No wonder, then, that democratic theorists have long insisted on restraining judges, even while acknowledging that their activity necessarily involves some interpretive freedom to use and abuse. There are disputes to settle under rules, laws to apply to new fact patterns, and overreaching executives to contain. But juristocracy is a congenitally American malady. Turning to judges as secret agents of political transformation is quite another matter. When [End Page 70] Click for larger view View full resolution The Supreme Court Justices in 2018 (Jabin Botsford/The Washington Post via Getty Images) the U.S. Constitution first became attractive in the late nineteenth century, it was among conservatives facing the frightening prospect of mass suffrage and finding in James Madison's handiwork a device for potentially weathering the coming tempest. Englishman Sir Henry James Sumner Maine, to take one example, sang the praises of the U.S. Constitution as "the most important political instrument of modern times" in his Popular Government (1885), for it "proved" the existence of "several expedients" that would allow the "difficulties" besetting any country "transforming itself" into a democracy to be "greatly mitigated" or "altogether overcome." Unsurprisingly, the powers of the U.S. Supreme Court ranked high on the list of such "expedients." American constitutional practice in this era reflected these antidemocratic virtues. American conservatives retrieved from obscurity the case of Marbury v. Madison (1803), which according to myth proclaimed the power of judicial review of legislation under the Constitution (though in reality it did no such thing). Judges suddenly began invalidating more statutes, throwing out progressive legislation at both federal and state levels. It took the strife of the Great Depression, and fear of Franklin Roosevelt, to cow the institution into getting with the progressive program. Political scientists who have studied the conditions for the exercise of judicial power have claimed it generally follows the democratic will. But no [End Page 71] one should minimize the energy and time it can take for judiciaries to catch up to majorities. As a triumphant FDR observed in 1937, "Ultimately the people and the Congress have had their way. But that word 'ultimately' covers a terrible cost." Within the span of two decades, unfortunately, progressives had embraced a judiciary they once scorned. Fears of a conservative minority imposing itself on democratic legislatures gave way, during the Second World War, to concerns about a tyrannical majority overriding civil liberties. Lost were liberal convictions that the tyranny...