By: Eric J. Segall1Professor of Law, Georgia State University College of Law and Christopher Jon Sprigman2Professor of Law, New York University School of Law
October 31, 2020
If we could bring back the framers and ratifiers of our Constitution, what would they think about Chief Justice John Roberts? And how would they size up the Supreme Court he leads?
Admittedly, attempting to read the minds of the long dead is a risky enterprise, as is trying to ascertain the original public meaning of the Constitution. And we are not even originalists, though Segall wrote a book on the subject. But we think it is accurate nonetheless to say that the framers would not be pleased with how central the Supreme Court has become to our politics, or with how willing, and even eager, the Court is to insert itself into battles that are essentially political rather than legal.
Our founders’ original understanding of the Supreme Court’s power of judicial review was that the justices would use their authority sparingly and only, as Alexander Hamilton noted in Federalist No. 78, when there was an “irreconcilable variance” between a statute and the Constitution. Twenty-one years before Chief Justice John Marshall’s iconic opinion in Marbury v. Madison formally justified judges striking down laws, Edmund Randolph, who would later become the Attorney General of the United States, defended judicial review at the state level in similar terms: courts were authorized to strike down state enactments only when there was a complete inconsistency between a law and the state charter. Moreover, leading historians of our founding era, such as Sylvia Snowiss and Gordon Wood, have understood the framers’ intent exactly this way: the courts’ power to overturn laws would be exercised only for an obviously unconstitutional act.
Any sincere originalist committed to upholding the framers’ conception of judicial review would have to adopt this narrow understanding of the legitimate use of that potentially great power, one where judges defer to elected leaders unless the Constitution unmistakably commands them not to. Instead, legal scholars obsess over the Supreme Court’s originalist interpretations of this or that snippet of constitutional text, all the while failing to understand the much broader sense in which the Supreme Court has, by intervening in our politics much more deeply than the framers ever intended, taken on a profoundly anti-originalist institutional character. All of which makes the debates over “originalism” seem largely beside the point. Originalists are mistaking the forest for the trees.
Contrast the framers’ narrow understanding of judicial review with how the Supreme Court has conducted itself since asserting in Marbury its power to strike down laws. Most notably beginning with the infamous Dred Scott case in 1857, where the Court stopped Congress from prohibiting slavery in U.S. territories, the Justices have asserted themselves well beyond the Constitution’s clear commands. Their aggressive stance has prevented national and state governments from implementing important laws and policies even where the Constitution does not speak directly and reasonable people could disagree over the constitutionality of those decisions.
The list of egregious Supreme Court interventions could fill several books—indeed, Segall wrote a book that details and critiques some of them. By “egregious,” we don’t mean Supreme Court decisions we disagree with as a political matter. We mean decisions where there was a perfectly reasonable argument for the constitutionality of the overturned government decision, but the justices struck down the law in question anyway. For example, we are both pro-choice, but it is also plain to us that the Constitution does not speak to the issue of abortion, at least not with the clarity that, according to the framers’ understanding of judicial review, would be necessary to support the decisions in Roe v. Wade and Planned Parenthood v. Casey. But Roe and Casey are far from the only examples of overreach by the Supreme Court, which has issued decisions that are sometimes liberal, more often conservative, but almost always—and regardless of their political valence—unduly aggressive and disrespectful of democratic self-government.
Take, for example, the Court’s Lochner era, running approximately from 1905 to 1936, during which the justices regularly overturned progressive laws regulating workplace safety, minimum wages, overtime rules, and a myriad of other statutes dealing with workers’ rights. The justices struck down these laws based in part on their laissez-faire ideology, and sometimes on a linguistically improbable (and, in retrospect, practically unworkable) understanding of the scope of Congress’s power under the Commerce Clause. It was on this basis, for example, that the Court overturned a federal law banning interstate trade in goods made with child labor. Manufacturing goods for profit, the Court held (with what we presume was a collective straight face), was not “commerce.” Eventually the economic desperation caused by the Great Depression meant that the Roosevelt administration was no longer willing to put up with the Court’s meddling in economic policy. President Roosevelt threatened to pack the Court, and the justices stood down to let Roosevelt’s New Deal programs take effect.
The court stayed away from most important political issues from 1936 to the early 1960s. Its perfunctory (13-page) decision in Brown v. Board of Education stands as an obvious counterexample. But Brown actually illustrates the limits of judicial interventions in politics. Brown declared unconstitutional formal legal segregation in public schools, but it omitted any detail about how that desegregation would be accomplished—other than by directing it be done with “all deliberate speed,” a phrase that perfectly encapsulates the Court’s powerlessness to actually make anything happen. Perhaps not surprisingly, Brown did not end de facto segregation, which exists to this day. Indeed, the backlash following Brown arguably entrenched segregation: it helped accelerate white migration from mixed-race cities to all-white suburbs, where discriminatory practices by zoning boards, real estate agents, and banks (all much more difficult for the law to address), as well as the notorious redlining of federally backed mortgages, would cement all-white public schools in place for generations.
Starting around 1963, the liberal Warren and early Burger courts leapt back into aggressive judicial review, issuing a series of decisions striking down state and federal laws based on expansive interpretations of the Constitution’s language unmoored to clear text or its original meaning. The Court barely tried to explain itself in many of these groundbreaking cases. For example, the main opinion in Griswold v. Connecticut, which overturned a state law banning contraceptive devices, was less than ten pages long and reads more like a political statement than a judicial opinion.
There was an inevitable backlash to the justices’ mostly liberal decisions, and Richard Nixon successfully ran against the Court in 1968 and 1972. But once conservatives made enough appointments to gain control of the Court, they turned not to restraint, but to a conservative brand of judicial aggression. Over the past 50 years, the justices have invalidated a slew of laws without any persuasive showing of clear inconsistency between the statute in question and the Constitution. Those decisions struck down laws dealing with affirmative action, voting rights, free speech questions where reasonable people could disagree if speech was being restricted at all, congressional enforcement of the 14th Amendment despite express constitutional assignment of that power to the Congress, and numerous other disputes that in virtually all other countries would be voted on by the people, not left to the value preferences of life-tenured judges.
Our personal political leanings are to the left. But our deepest commitment is to democracy, and to a role for judicial review that strengthens democratic decision-making rather than second-guessing and otherwise undermining it. There are strong, persuasive, and enduring policy reasons why judges should interfere in democratic decision making only in extraordinary circumstances. But the central objection to the aggressive Supreme Court interventions we have detailed is simple: if both American political parties were not so intent on appointing judges that they know in advance are likely to give them what they want, we would not give unelected, life-tenured judges the power to resolve important and divisive political disagreements over issues like abortion, gun safety, affirmative action, and the validity of economic legislation. Our disagreements over these issues are fundamentally about values, not about law. And decisions about values should be made democratically, according to regular voting procedures that apply to the people and their representatives. They should not be made by five or more lawyers dressed like priests who sit in a fake Greek temple on a hill. The framers would agree. Their understanding of judicial review involved the enforcement of the Constitution’s clear text or unmistakable purpose. But the Constitution simply does not speak to many of the issues that the federal courts have reached out to seize. Absent invidious discrimination or completely irrational governmental decisions, federal judges should steer clear of political fights.
We want to be careful to make the limits of our argument clear. The founders did not think that their usual rule of strong judicial deference would apply to laws, policies, or decisions directly affecting the judicial power. They expected that courts would more aggressively review laws regulating the proper role for juries, what evidence is admissible at trial, when confessions are coerced, what would count as double jeopardy, and other issues concerning how America’s courtrooms are run. The framers were right to accord judicial review greater scope in the areas where judges are experts. But with those exceptions, judges should stay out of important policy decisions and, again in the words of Hamilton in Federalist No. 78, exercise “neither force nor will, but merely judgment.”
The result of the Court’s overreaching is that the justices play an oversized role in our nation’s politics. For example, their nationally televised confirmation hearings have devolved into awful public spectacles that, in the words of Justice Elena Kagan when she was a law professor, are just “vapid and hollow charade[s]” in which both Senators and nominees mouth pieties about the modest role of judges in “calling balls and strikes” and “enforcing the Constitution as written” that neither side actually believes—or, for the most part, even desires. More importantly, presidential elections often turn into informal referenda on who should be on the Court. Ronald Reagan successfully ran against so-called activist judges using Roe v. Wade as his main weapon, and Donald Trump used his now-famous potential list of Supreme Court justices to great effect in 2016. Seventy-six percent of voters in the 2016 election said the Court was “very important” to them, and one in five said it was the most important issue to them. This myopic focus on judges is not healthy in a democracy. Unelected, life-tenured judges just should not matter this much, and in no other country do judges play such an important role.
Our critique of aggressive judicial review is neither liberal nor conservative, Democrat nor Republican. The Burger Court’s interferences with state abortion laws were, in our view, just as legally indefensible and politically destructive as the Roberts Court’s invalidation of federal arrangements to guarantee voting rights. And the problems continue today. This past Supreme Court term, which many Court commentators lauded as one where the Justices were mostly modest, was anything but. The Court issued constitutional law decisions elevating free exercise of religion rights in ways that substantially interfered with important state policies protecting separation between church and state, and with federal employment discrimination policies meant to protect the aged and the disabled. These decisions were based not on the text or history of the First Amendment but rather on the ideological commitment of the current Court to elevate religious believers’ interest in the free exercise of their religion over the public’s common interest in the non-establishment of religion. The Constitution itself, however, treats both equally.
If the judicial role in our country resembled what the framers had in mind, any number of legislative arrangements trading off between free exercise and anti-establishment interests would be upheld by the courts. But that is not the country we live in. Instead, a conservative voting bloc on the Supreme Court is prosecuting a particular pro-religion ideology that it prefers and elevating that ideological commitment to the level of constitutional law—which means that it cannot be displaced without either a constitutional amendment or yet another round of partisan struggle over new appointments to the Supreme Court. The Court’s exercise of raw political power shows us why every nomination to the Supreme Court now comes bundled with the partisan brawls, litmus tests, and evasions that debase our national discussion about courts and their role.
We need to end the practice of unelected judges resolving so many of our country’s most difficult political, social, and cultural issues. And the only way to do that is deep, structural reform that will force the Supreme Court to stop overreaching. Hoping that the President and the Senate will appoint more deferential justices is simply not a viable option. Governmental officials rarely give up such power voluntarily.
One method for weakening the Court’s power can be found in the plain text of Article III of the Constitution. In a forthcoming Article, Sprigman argues that Article III of the Constitution gives Congress substantial power to strip the jurisdiction of the federal courts: a tool that can be employed to rein in the power of courts, including the Supreme Court, and even to override judicial decisions when there is a substantial and enduring political coalition standing for change. One benefit of jurisdiction stripping is that it does not require a constitutional amendment. Article III explicitly gives Congress the power to limit the jurisdiction of lower federal courts. Indeed, it gives Congress complete discretion whether to create them at all, and that power to make or unmake the lower federal courts has, from the founding, been understood by Congress as a power to limit their jurisdiction (which Congress has done in a series of Judiciary Acts).
Article III also explicitly empowers Congress to make “exceptions” to the Supreme Court’s appellate jurisdiction—i.e., to approximately 99% of the Supreme Court’s total docket. Sprigman argues that Congress can remove the Supreme Court’s authority over particular cases, or particular issues, largely without constraint. He reviews scholars’ arguments regarding possible limits both internal and external to Article III, as well as various theories of the Supreme Court’s “essential role.” He does not find them persuasive (and neither does Segall). But, of more practical importance, the various theories of constraint would in all likelihood prove no match for a Congress determined to assert its power over the federal courts’ jurisdiction.
An example can show how important a tool jurisdiction stripping could be to force the justices to be more deferential to political decisions made elsewhere.
Imagine Congress passes a law establishing a set of campaign finance restrictions—including limits on corporate contributions—that is significantly more far-reaching than the Supreme Court’s bizarre and anti-historical First Amendment jurisprudence would permit. Congress can, according to our argument, use its Article III power to remove courts’ jurisdiction to hear challenges to its campaign finance rules. Again, if either the campaign restrictions themselves—or Congress’s use of its Article III power to shield them from hostile courts—proves unpopular, Congress will face discipline from voters, not judges. The same technique can be used for most constitutional issues.
It is true that our country has rarely operated this way before. But the text of Article III unambiguously gives Congress the power to mold the jurisdiction of the federal courts (which is why we have amount-in-controversy requirements and restrictions on habeas jurisdiction). The Constitution gives Congress enormous control over the role that courts play in our democracy. We have traditionally acquiesced to an expansive role for the federal courts, mostly without thinking about it. It is long past time for the pendulum to swing in the other direction and for the American people, legal scholars, and politicians to seriously reconsider the idea of judicial supremacy.
The ideas expressed in this essay have little to do with the politics of the moment. Segall wrote a book in 2012 arguing that the Supreme Court has too much power and we need to find ways to curb its undue interference in our political system. Sprigman wrote an article in 2011 arguing that in cases where the Constitution does not unambiguously direct a result, courts should step aside and let the political process unfold. And the account presented here of Congress’s power to rein in the courts through jurisdiction-stripping can be used by Republicans as well as by Democrats. Our concern is not about which side wins in any particular struggle. Our concern is the proper balance between constitutionalism and democracy. We have too much of the former, and not nearly enough of the latter. And that problem is not new. Over a century ago, Alexis de Tocqueville noted that Americans tended to turn every political issue into a legal dispute. He thought that was a feature of American constitutional democracy. But we say it is a flaw, and a consequential one. When we turn our backs on politics and seek to resolve our differences through the courts, we empower lawyers and disempower citizens. We need to re-acquaint our citizens with both the labor and the pleasure of a well-functioning democracy by limiting the power of unelected, life-tenured judges.
Eric J. Segall, Professor of Law, Georgia State University College of Law
Christopher Jon Sprigman, Professor of Law, New York University School of Law
Suggested Citation: Eric J. Segall & Christopher Jon Sprigman, Reducing the Power of the Supreme Court: Neither Liberal nor Conservative but Necessary (and Possible), N.Y.U. J. of Legis. & Pub. Pol’y Quorum (2020)
- 1Professor of Law, Georgia State University College of Law
- 2Professor of Law, New York University School of Law