The Least Dangerous Branch?

The partisan rancor attending the recent confirmation hearings for Justice Brett Kavanaugh and Judge Amy Coney Barrett have illustrated once again that the Supreme Court has become too important in American political life. It has also revealed that the real divide among jurists is not between so-called liberals and conservatives but between those who believe that nine unelected justices should be free to impose their “progressive” vision on society and those who believe that judges are constrained by the Constitution and what the law actually says.

The case of the late Justice Ruth Bader Ginsburg illustrates the point. Justice Ginsburg was certainly a remarkable woman, but her jurisprudence contributed to the dangerous idea that the Supreme Court is a super legislature, the purpose of which is not to judge the law in accordance with the Constitution but to make law in accordance with one’s ideological preferences. Writing in praise of Ginsburg, Linda Hirshman of the Washington Post inadvertently revealed the problem with her jurisprudence. Ginsburg, she wrote, “had a vision for America…. To make America fairer, to make justice bigger.”

But while Ginsburg’s “vision” may be appropriate for a legislator, it is not appropriate for a judge. The question for a judge is not “does this law accord with my vision,” but “is this law consistent with the Constitution?”

The architects of the Constitution envisioned a modest role for the judiciary.  As Alexander Hamilton argued in Federalist 81, that branch would have “no influence over either the sword or the purse … It may truly be said to have neither FORCE nor WILL, but merely judgment.” And the purpose of that judgment was to ensure that laws are in accordance with the Constitution. “No legislative act contrary to the Constitution can be valid … If there should happen to be an irreconcilable variance between the two … the Constitution ought to be preferred to the statute.”

The transformation of the Supreme Court into a super legislature, inventing laws rather than judging them, has been coeval with the rise of the “administrative state,” an unconstitutional fourth branch of government that combines legislative, executive and judicial power in one body, which, as James Madison argued in Federalist 47, is the very definition of tyranny, It has also been coeval with the decline of Congress, which has abdicated its lawmaking role.  There are many issues that divide Americans. These are properly settled by the legislative branch at both the state and national levels. But abortion, health care, gun laws and the like are contentious, so Congress has been happy to defer to the courts, absolving members of having to make difficult — and unpopular — decisions.

The drafters of the Constitution envisioned the Supreme Court not as a super legislature seeking to bring the law into accordance with the preferences of a “progressive” world view, but as a body concerned with ensuring that laws are consistent with the Constitution. Sound jurisprudence does not pretend that what progressives want is already mandated in the law. Sound jurisprudence is not Justice William O. Douglas’s “penumbras” and “emanations” (Griswold v. Connecticut) just waiting to be discovered by clever jurists.

Oliver Wendell Holmes wrote that he did not “think it desirable that the judges should undertake to renovate the law.” If a law needs to be changed, it is the democratic process as it plays out in the legislature that is the proper venue. That is the purpose of the separation of powers. “The criterion of constitutionality,” he said, “is not whether we believe the law to be for the public good.” That was for other people to decide. “When [judges] know what the source of the law has said it shall be, our authority is at an end.”

As the recent controversies over Supreme Court justices illustrate, that body — indeed the judiciary as a whole — has become far more important than the Founders intended. They understood that Congress, not the court, is the law-making body. Let us return the Supreme Court to its status as described by Hamilton: the “least dangerous branch,” not the “nine-headed Caesar” described by the late Justice Antonin Scalia.

This article originally appeared in the Providence Journal.

Get the news corporate media won't tell you.

Get caught up on today's must read stores!

By submitting your information, you agree to receive exclusive AG+ content, including special promotions, and agree to our Privacy Policy and Terms. By providing your phone number and checking the box to opt in, you are consenting to receive recurring SMS/MMS messages, including automated texts, to that number from my short code. Msg & data rates may apply. Reply HELP for help, STOP to end. SMS opt-in will not be sold, rented, or shared.

About Mackubin Owens

Mackubin Thomas Owens is a retired Marine, professor, and editor who lives in Newport, RI.

Photo: Fanatic Studio/Gary Waters/Science Photo Library