Nobody likes judges. Progressives think the courts are too cozy with big business, stomping on the rights of the “little guy” when they’re not depriving him of the right to vote or allowing his boss to deny him contraceptives. And don’t get them started on Citizens United (no, please, don’t). Conservatives, for their part, are wary that, even if they win plenty of cases, they always seem to be one vote short on the things that really matter: marriage, racial preferences, Obamacare. Not to mention the nationwide injunctions since Donald Trump became president, thwarting the president’s agenda on everything from the travel ban to sanctuary cities to 3-D printed guns to the reversal of various regulations and executive actions from the Obama era.
And all that’s before we even get to the bizarro circus that comes to town any time there’s a vacancy on the Supreme Court, when the left dials it up to 12 – “where we’re going, we don’t need dials” – mostly about abortion but there are plenty of other horribles in that evergreen parade. If Neil Gorsuch is an “illegitimate” justice because he “stole” Merrick Garland’s seat, Brett Kavanaugh’s illegitimacy stems from his being selected to grant Trump some sort of newfangled immunity. (As if Kavanaugh wouldn’t have been picked by Jeb Bush or Ted Cruz, or that this scholarly jurist is just Michael Cohen with a Yale degree.)
This isn’t right. No other country has this sort of judicial fetish; Americans famously can’t identify any Supreme Court justices – notwithstanding Ruth Bader Ginsburg’s current semi-celebrity in some circles – but other countries’ elites don’t know who their top jurists are. And for good reason: whereas in America, every June nine black-robed lawyers decide a handful of the nation’s biggest political controversies, elsewhere it’s the national parliament that’s supreme, or in any event doesn’t give the courts power over issues with significant political salience (and also, the people don’t expect the legislature to be bound in the same way).
The Court and Congress Corrupted the Constitution
As I wrote for inFOCUS in 2016, the Supreme Court itself bears significant blame for the toxic nature of our legal battles, with a constitutional corruption that started during the New Deal and expanded in the decades since. As the Court has allowed both the legislative and executive branches to grow beyond their constitutionally authorized powers, so have the laws and regulations that the Court now polices. All of a sudden, competing legal theories battle for control of both the United States Code and the Federal Register, as well as determining – often at the whim of one “swing vote” – what rights will be recognized. As we’ve gone down the wrong jurisprudential track, the federal judiciary now has the opportunity to change the direction of public policy more than it ever did. So of course, judicial confirmations are going to be fraught with partisan considerations, particularly as competing interpretive theories essentially map onto political parties that are more ideologically sorted than ever.
At the same time, courts are reactive institutions: even the most “activist” need a case or controversy before them, rather than reaching out to make rulings out of thin air. So, it’s Congress that’s ultimately the aggressor, both daring the courts to strike down significant pieces of legislation and passing broad legislation that leave it to the administrative state to produce the legal rules by which people are ultimately bound.
Senator Ben Sasse (R-NE) gave a pithy summary of this dynamic in his opening statement at the Kavanaugh hearings, reprinted in The Wall Street Journal the next day.
For the past century, more legislative authority has been delegated to the executive branch every year. Both parties do it. The legislature is weak, and most people here in Congress want their jobs more than they want to do legislative work. So, they punt most of the work to the next branch.
The consequence of this transfer of power is that people yearn for a place where politics can actually be done. When we don’t do a lot of big political debating here in Congress, we transfer it to the Supreme Court. And that’s why the court is increasingly a substitute political battleground. We badly need to restore the proper duties and the balance of power to our constitutional system.
In other words, Congress doesn’t complete its work because this way it can pass the political buck to a faceless bureaucracy, and to a court system that ultimately has to evaluate if what these alphabet agencies come up with is within spitting distance of what the Constitution allows. What’s supposed to be the most democratically accountable branch of government has been punting its responsibilities and avoiding the hard political choices since long before the current polarization.
Indeed, the “gridlock” of the last decade is a feature of a legislative process that’s meant to be difficult by design, but compounded of late by citizens of all political views being fed up with a situation whereby nothing changes regardless of which party is elected. Washington has become a perpetual-motion machine – and the courts are the only actors with an ability to throw in a monkey wrench from time to time. That’s why people are so concerned about the views of judicial nominees – and why there are more protests in front of the Supreme Court than in Congress (which, when you think about it, is absurd).
With the Newest Justices, Things Are Looking Up
In any case, things are looking up as far as the Court is concerned. The term just past was the first full one with the Court back at its “full strength” of nine justices, so all eyes were on Justice Gorsuch to see how the Court’s internal dynamic would shift. While early reports, based on what turns out now to be unsubstantiated speculation, spoke of tensions between the newest justice and several of his colleagues, he quickly settled in and ended up writing many thoughtful opinions, including being assigned to write for the majority in more 5-4 rulings than any junior justice since 1988-89 (when the junior justice was one Anthony Kennedy).
Gorsuch is the real deal. Those who hoped for (or feared) a smooth-writing textualist got what they expected. “Wouldn’t it be a lot easier if we just followed the plain text of the statute?” he asked at his first argument, in an otherwise forgettable case. “Originalism has regained its place at the table [and] textualism has triumphed,” he explained to more than 2,000 celebrants at the Federalist Society’s annual dinner last November.
Gorsuch has also been warning against judicial over-deference to executive agencies. I can’t do the debate justice here, but suffice it to say that in this pen-and-phone-and-tweet era, it’s refreshing to see a jurist note the lack of accountability in a system driven by bureaucrats rather than legislators. Why do Democrats want a Scott Pruitt or Betsy DeVos to have so much power anyway? Because that’s what they’re saying when they want judges to defer to agencies.
Regardless, the Court’s ideological dynamic that we’ve all gotten used to, with four liberals, four conservatives, and a “swing,” is now done. With Justice Kennedy’s retirement, the Court will move right, with the chief justice at its center. While John Roberts will have even more incentive to indulge his minimalist fantasies to lead the Court from the squishy commanding heights, he is a far surer vote for conservatives than Kennedy.
And by filibustering Gorsuch, Democrats destroyed their leverage over this latest, more consequential vacancy. It’s not clear that moderate Republican senators would’ve gone for a “nuclear option” to replace Kennedy with Kavanaugh, but now they don’t face that dilemma.
Brett Kavanaugh is a great pick even if an inside-the-Beltway double-Ivy swamp creature is a somewhat surprising choice for this president. Having spent a dozen years on the D.C. Circuit, Kavanaugh’s opinions are grounded in text and history, and are often cited by the Supreme Court itself. He’s much like Justice Kennedy, for whom he clerked, in his dedication to the Constitution’s structural protections for liberty. That was a central theme of Kavanaugh’s remarks during the White House ceremony announcing his nomination: “I teach that the separation of powers protects individual liberty.”
Perhaps most notably, Kavanaugh’s willingness to push back on the excesses of the regulatory state make him a man for the moment. At the same time, he approaches this task from slightly different angle than Gorsuch. Whereas Gorsuch wants to pare back the scope of deference, Kavanaugh focuses on reducing the number of instances where deference is applied in the first place. For example, under the famous Chevron doctrine, judges defer to agencies when the agency’s operational statute is ambiguous – and Kavanaugh would rather that judges work not to find (or manufacture) that ambiguity.
More prosaically, Kavanaugh sees the judicial role as reading and applying the law, not being an agent for social change. There will be cases where he and the Cato Institute don’t see eye-to-eye – he’s not a libertarian – but I hope that in those politically sensitive times where Chief Justice Roberts may be inclined to rewrite a law in order to save it, Kavanaugh will be more like Justice Antonin Scalia and let the political chips fall where they may.
A Return to Federalism Is the Only Hope
In the end, the measure of the Supreme Court’s success will be the extent to which it plays a role in rebalancing our constitutional order, curbing executive-branch overreach – thereby putting the ball back in Congress’s court – and returning power back to the states. After all, the separation of powers and federalism exist not as some dry exercise in Madisonian political theory but as a means to that singular end of protecting our freedom.
These structural protections are the Framers’ brilliant best stab at answering the eternal question of how you empower government to do the things it must do to secure liberty while also building internal controls for self-policing. Or, as James Madison famously put it in Federalist 51, “In framing a government which is to be administered by men over men [because men aren’t angels], the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
The reason we keep having these heated battles in the courts is that the federal government is simply making too many decisions at a national level. There’s no more reason that there needs to be a one-size-fits-all health care system, for example, than that zoning laws must be uniform in every city. Let legislators – not regulators – make the hard calls about truly national issues like defense or interstate commerce, but let states and localities make most of the decisions that affect Americans’ daily lives. Let Texas be Texas, California be California, and Ohio be Ohio. That’s ultimately the only way we’re going to defuse tensions in Washington, whether in the halls of Congress or in the marble palace of the highest court in the land.
Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.