In two opinions handed down minutes apart last month, Justice Antonin Scalia first dissented “to call attention to [the Supreme] Court’s threat to American democracy” in its invalidation of state bans on same-sex marriage, and then wrote for the Court in striking down a provision of the Armed Career Criminal Act on the ground that the term “violent felonies” was too vague for the average four-time felon to understand.
Although Justice Scalia didn’t blanch at throwing out an important statute passed by Congress in the latter case, in the former ruling, he lamented that “[a] system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”
He’s right; that system should be called a constitutional republic, and one that we should all be proud to live in—even, if not especially, when the Supreme Court hands down rulings with which we disagree.
For generations, legal scholars and political scientists have waxed philosophic about the “countermajoritarian difficulty”—the seeming paradox of having a democratic system held to account by a strong, independent, and unelected judiciary.
But like most separation of powers problems in our constitutional system, the solution to the countermajoritarian difficulty is not for our government institutions to go out of their way to limit their own power, but rather for them to aggressively police each other.
As James Madison famously explained in the Federalist No. 51, “[a]mbition must be made to counteract ambition.”
In the context of the judiciary, this ambition is best understood as the mandate first articulated by Chief Justice Marshall—the courts’ “virtually unflagging obligation” to exercise the jurisdiction that Congress and the Constitution have bestowed upon them.
As just one example of this thesis, take the one case from the Court’s most recent term that raised a classic separation of powers conflict between the legislative and executive branches: Zivotofsky v. Kerry.
In 2002, Congress, in a rare recent assertion of institutional supremacy, pushed back against longstanding Executive Branch policy that refused to recognize Jerusalem as the capital of Israel.
When U.S.-citizen parents of a child born in Jerusalem sought to have his passport document “Israel” as his place of birth, the State Department objected, and the parents sued.
All of the Justices save Stephen Breyer ultimately agreed that, as a result, the courts had both the ability and the responsibility to resolve the dispute, and, in the end, a 5-4 Court sided with the Executive and struck down the statute. Reasonable people may well disagree as to which of the four opinions on the merits offered the best answer to the question (my own view is that none of them did). But is there a real constituency for Justice Breyer’s view that we all would’ve been better off if the courts had just stayed out of the matter altogether? What would have happened, then?
The same theme permeates each of the Court’s other eight decisions invalidating state or federal government actions from the most recent Term. In all but the marriage cases, the fight was not over the power of the Supreme Court to exercise anti-democratic “judicial review,” but rather the justifications for doing so in that particular case. Why is it, then, that the dissenting Justices portrayed the marriage cases as an arrogation of judicial power—and not just an incorrect application thereof?
The answer, I submit, is hubris. It’s one thing to believe, as some do, that judicial review itself is anathema to democracy, and so the courts overstep their authority whenever they override acts of democratically accountable state and federal government entities. But none of the current Justices—including the four dissenters in the marriage cases—actually feel that way; look no further than their approach to campaign finance regulation, the Second Amendment, or the Voting Rights Act, among others.
This is not to say, of course, that judicial power can’t be abused; it can, and, at some points in our history, clearly has been. One of the most indefensible aspects of the Supreme Court’s infamous Dred Scott decision was Chief Justice Taney’s invalidation of the Missouri Compromise—an Act of Congress—after he concluded that, because Scott was not a citizen of a state, the federal courts lacked jurisdiction over his suit.
But to understand the proper role of the courts in our constitutional system, it’s long-past time that we learned the difference between rulings that exercise judicial power that doesn’t exist, and those that exercise established judicial power to reach a result with which we disagree. The former deserves responses from the other actors in our constitutional system; the latter deserves our celebration—not because the courts got it “right,” but because they answered the question in the first place. Without that kind of aggressive judicial review, we actually would live in a pure democracy—and, as a result, be constantly subject to the tyranny of the majority.
Stephen I. Vladeck (@steve_vladeck) is a professor of law at American University Washington College of Law and co-editor-in-chief of the Just Security blog, https://www.justsecurity.org.
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