Thinking About Things: The Politicization of the American Judiciary

By John DeQ. Briggs

The death of a Supreme Court Justice has again brought forth uncabined forces of hypocrisy and bloviation.  It is almost entertaining to see each side excoriating the other for doing precisely what they would be doing if the shoe were on the other foot. Yet beneath it all, there is a legitimate political reason for all of this hyperactivity: the American judiciary has become more powerful than many legislatures, and even a single judge with lifetime tenure and no political accountability can stop presidential action or legislative enactment  in its tracks.  This problem has been brewing for a long time and it will not go away for a long time.

 In a different context, I wrote about this back on March 3, just before The Great Lockdown began.  The context then was a discussion about an  extraordinary  book by Jonathan Sumption, a retired British Supreme Court Judge: Trials of the State and the Decline of Politics. The context now is a vacant Supreme Court swing seat on the cusp of one of the most contentious presidential elections in American history.  There are many depressing things to note about the current state of the American Judiciary and I will note but a few of them here.  But there are also some relatively straightforward solutions to some of the problems and I will note them as well.

Problems.  As I noted last March, the expansion of law is one of the most significant phenomena of our time.  The law touches nearly everything.  The law has more power than the family regarding the wellbeing of children.  More power over social behavior than do most churches; and increasing power over commerce interests large and small.  The expansion of individual and group constitutional rights has placed matters before courts that, in virtually every other developed country in the world, are handled by legislatures and therefore have the power of real political legitimacy.  Judicial power is power against which the electorate has only limited and indirect political recourse.  Worse yet, however, increasingly politicians in general, and the 2016 and 2020 presidential candidates in particular, promise if elected to deliver judges of a certain ideology, and indeed youthful judges who can be expected to serve for many decades.  We see this at the state level in gubernatorial elections as well: politicians running for office on the promise of a truly biased and non-neutral Judiciary.  

On the left, we have promises to appoint minorities of every kind and character: minorities who will interpret state or federal constitutions to expand group rights and individual rights whenever the opportunity presents itself. On the right, this is seen as illegitimate, antidemocratic, and a grave threat to personal and religious liberties. Candidates of the right promise judges who will “enforce the law” and not “make it up.”  We also hear promises to free society from the yoke of the left; from the tyranny of politically correct groupthink; to protect individual and religious liberties; and to remain faithful insofar as is practicable to the provisions underpinning our founding documents.  On the left, this is seen is the continuation of structural racism and the perpetuation of social injustice — terms that have become as inflammatory as they are bereft of agreed meaning.  

These tend to be big issues.  They often affect the day-to-day life of citizens.  Yet, it was not until the Supreme Court’s 1973 decision legalizing abortion during the first trimester (Roe v. Wade) that the issue of judicial politicization became fully “nationalized.” I do not mean to ignore the Court’s 1954 decision inBrown v. Bd. of Education declaring “separate but equal” educational systems for blacks and whites to be unconstitutional.  However, I suggest that decision had deep constitutional roots and did not present serious constitutional controversy inside the legal community or outside that community.  Certainly, the bussing remedies later imposed by the judiciary were controversial, no less so in Boston, Massachusetts than in the deep south.  But there was never sharp national division over the core question of whether segregated schooling was constitutionally permissible or proper.  One does not have to peer into the dark penumbral shadows of the Constitution to discover the constitutional right that Brown enforced.

But the expansion of individual rights post-Roe v. Wade, has often been controversial and has not infrequently relied on a relatively elastic view of one or more constitutional provisions.  Below is a sampling of important Supreme Court decisions finding certain things constitutional or unconstitutional.  My point here is not to criticize any particular decision as right or wrong, but rather to take note of the outsized role of the judiciary, ultimately the Supreme Court, in being the arbiter of long dormant or newly discovered individual “rights.”  Not included in this list are Supreme Court decisions confirming the constitutionality of rights established by legislative action, of which there are many.  But legislative declarations of rights are of a totally different character than judicial declarations of rights, given that the former have the imprimatur of democratic legislative legitimacy. 

The Equal Protection clause of the Constitution has underpinned a great many of the landmark cases in this area, the most well-known of which were part and parcel of the unwinding of the nation’s segregation laws. These cases gradually expanded over the last several decades to prohibit decisions by government agencies or private instrumentalities based in whole or in part on race, sex, or religion.  Thus affirmative action by schools and colleges became largely prohibited, although some of these cases are being modified right now to allow taking into account race and gender in the name of diversity in view of the developing judicial consensus that “a diverse student body is beneficial to all students.”

  • Beginning in the early 1970s, statutes and business practices designed to “protect” women (and children) were found to be discriminatory at least as to women and hence constitutionally impermissible under the equal protection clause of the 14th amendment. 
  • In 1986, Supreme Court found that a Georgia law that criminalized certain acts of private sexual conduct between homosexual persons did not violate the 14th amendment.  From and after 1996, the Supreme Court cases turned and went the other way, constitutionally protecting homosexual, bisexual, and transsexual activity.  By 2003, the Supreme Court had declared consensual same-sex conduct to be a constitutionally protected privacy right and as a result all of the sodomy laws of the United States were invalidated.
  • The right of same-sex couples to marry was first declared by the Supreme Court of Massachusetts in 2003.  By 2015, the Supreme Court had declared that the 14th amendment required a state to license the marriage between two people of the same-sex and to recognize a marriage between two people of the same-sex when their marriage was lawfully licensed and performed out-of-state.
  • State statutes requiring abortion providers to have admitting privileges at a hospital proximate to their location violated the Constitution because it placed a substantial obstacle in the path of a woman seeking a pre-viability abortion.
  • Beginning in 1990, the Court heard a handful of decisions on “end of life” issues concluding that (a) the State may constitutionally oppose the request of family members to terminate life-sustaining treatments in the absence of evidence of a clear earlier wish by the vegetative relative; (b) the Controlled Substances Act does not prevent physicians from being able to prescribe drugs needed to perform assisted suicides under state law; and (c) a state law prohibition on assisted suicide does not violate the Equal Protection Clause. 
  • Teaching creationism in the public schools is unconstitutional (1987)
  • A university cannot use student dues to fund secular groups while excluding religious groups (1995)
  • Prayer in public schools even when initiated and led by students violates the Establishment Clause (2000)
  • A government program that provides tuition vouchers for students to attend a private or religious school of their parents choosing is constitutional because the vouchers are neutral toward religion and therefore do not violate the Establishment Clause.
  • A State’s “no aid” constitutional provision prohibiting state aid to religious schools violates the Free Exercise clause by explicitly discriminating against institutions on the basis of religion.

A much longer list of similar cases establishing or modifying individual constitutional rights can be found at Wikipedia here.  

The judiciary has not always sought out this power, but it has almost never shrunk from exercising it either.  And while the judiciary cannot always be faulted for entertaining cases that are brought before it, it can be faulted for taking away from legislatures the business of establishing “rights” where the Constitution itself is silent.  Indeed, most of the individual rights that have been declared or discovered in the Constitution by our Supreme Court have been enacted by legislation through a democratic process in other countries.  Still, in a number cases the judiciary’s opportunity to exercise its awesome power is the product of the abandonment of power by legislatures.  With regard to contentious social issues, the Congress, preoccupied as its members always are with reelection, too often has declined to enter the fray for fear of taking a position that will offend some large voting bloc.  I personally expect that had the Supreme Court never decided Roe v. Wade in 1973, abortion rights in most states would have been established through a democratic legislative process in much the same way that end of life law is developing (see above).  Imagine if that chapter of the culture wars had never been written.  It surely would have meant that the Supreme Court never would have become perceived by so many as the most important branch of government and in its own way the root source of so much political dysfunction in this country.

In addition, and often for similar decision-avoidance re-election-related reasons, legislatures have engaged in unsupervised delegation of authority to administrative agencies who perform largely legislative functions both at the federal level and at state levels.  Individuals and enterprises aggrieved by these administrative agencies must therefore go to the courts for recourse, thus putting into the hands of the courts a seemingly endless variety of large and small administrative law issues that should be essentially legislative matters.  As these administrative issues find their way to the courts, and they always do, we have the courts faced with accepting the administrative state or substituting themselves for the agencies, which have become de facto substitutes for the legislatures.  And while the agencies are typically part of an executive branch of government, courts do not these days seem particularly to defer to executive branches should they seek to manage or micromanage administrative agencies.  We therefore see courts performing (or even sometimes usurping) legislative functions, administrative functions, and executive functions. 

We see this particularly in “hot button” issues such as those involving immigration, agricultural and other land use, oil & gas production and distribution, and micromanagement of certain state election rules (polling hours and deadlines for mail-in ballots are among the current issues that have drawn in the judiciary).  To quote from Jonathan Sumption: “[t]o adapt the famous dictum of the German military theorist Clausewitz about war, law is now the continuation of politics by other means.”  This situation has created what is known generally as “the Administrative State” or, more ominously, “the Deep State.”  

Another facet of the judicial tyranny problem is that a single federal district judge (out of roughly 850 such judges) can enjoin indefinitely the implementation of executive directives, whether presidential or administrative.  Still further, a single sitting federal district judge can declare unconstitutional an act of Congress.  These individual judicial actions are, of course, subject to appeal, but we have seen over the last several years that the appellate process can be frustratingly cumbersome and hardly less “political” than the decisions of individual district court judges.  Swift executive action on controversial matters has become virtually impossible. Interested groups, left or right, file their lawsuits before judges whose biases are well known, and in circuits whose political tendencies are equally well-known.  Political litigants, in other words, often get to pick their judges and do so with some skill.  This is not lost on the media, which spends real time lionizing favored judges and demonizing disfavored judges.  Judicial careers and reputations can be shined and buffed by the press (or diminished).  There is even a word for this: it is called “the Greenhouse effect” after the New York Times reporter Linda Greenhouse, who has been covering the Supreme Court for an exceedingly long time now.  Arguably, the judicial desire for media respectability has pulled more than one conservative justice or judge noticeably to the left. 

In the circumstances, it is hardly surprising that candidates for executive offices wish to reshape the judiciary so as to make it reasonably compliant with their political agenda.  Yet, over time, the judiciary becomes perceived, as it largely is now, not as a source of disinterested independent judgment, but rather as “just another bunch of politicians.”  And not only are they not elected by anyone, they serve for life, which these days may mean into their late 80s or beyond.  

The credibility of the judiciary itself is at risk.  In fact, it is past that point.  The judiciary in certain areas already lacks credibility.  When Chief Justice Roberts says there are no Obama judges and no Trump judges and so forth, he is not taken seriously.  He is not believed.  This is because such a statement is simply not true.

We are about to be subjected to several weeks of horse feathers and hypocrisy in connection with the nomination of a Catholic woman with many children who has rocketed through an extraordinary career.  There will be hour after hour of mock outrage, faux shock, and real Kabuki Theater. The left is and forever will be apoplectic that a liberal Jewish justice could have “her” seat “taken” by a conservative Catholic justice.  The right will do everything it can to fill the vacancy before the end of the President’s current term, it being rightly fearful that the current administration will not have another term.  Indeed, the 2020 election, in one respect, is beginning to have the feel of the 2016 election insofar as both campaigns put enormous stress on the nature of the judges that would be appointed by the winning side.  Candidates run on the explicit promise that they will deliver reliably biased and ideological judges who will share the political ideology of the candidates’ supporters.

This is an appalling situation about which thoughtful judges should feel nervous if not embarrassed. Yet judges, like everyone else these days, have a point of view about the proper role of government; the rights and responsibilities of citizens; and indeed, the rights of non-citizens – illegal aliens. Increasingly the views of the judges from the left and the right are as incompatible and hostile to each other as are the views of the citizenry at large.  

Indulging the perhaps heroic assumption that norm-breaking approaches will not be taken, there are some solutions, which must start at the margin with incremental change. 

Potential Solutions. There are some solutions to some aspects of the problems.  But first of all, “packing” the court with more justices would exacerbate the problem, delegitimize the court, and turn our judicial system into something of a laughingstock.  However, should the Democrats win the Presidency and the Senate in five weeks, this might well happen. And DC and Puerto Rico might be rocketed into statehood to assure four more democratic senators too. Things are that bad. 

But the politicization of the judiciary could be mitigated. Here are four modest proposals, three of which could be simple. 

Proposal #1:  Term limits.  There are at least two obvious ways to impose some flavor of term limit.  First of all, retirement could be compulsory at a certain age, say 70 or 75.  Or, an individual Justice’s could be limited to 20 or 25 years.  This kind of proposal might not contravene the Constitution because Supreme Court Justices whose terms expire could continue to serve as trial judges or appellate judges on a Circuit Court.  This would keep intact their “lifetime” appointment, but it would not be a lifetime on the Supreme Court itself. There are respectable views that this is constitutional   and also that it is not constitutional.  It seems to me worth a shot.    

Proposal #2: Impose a statutory requirement that no single judge can declare unconstitutional an Act of Congress.  All challenges to an Act of Congress should be heard by a three-judge panel, with three sitting judges from three separate circuits (appellate judges should be included in the pool from which random judges would be selected).  The decision of this three-judge panel would be immediately appealable to the entire Supreme Court, which would be directed by statute to expedite the appellate process.

Proposal #3: Similarly, impose a statutory requirement that no single judge can enjoin any Presidential executive order.  All challenges to any such Executive Order should be heard by a three-judge panel, with three sitting judges from three separate circuits (appellate judges should be included in the pool from which random judges would be selected).  The decision of this three-judge panel would be immediately appealable to the entire Supreme Court, which would be directed by statute to expedite the appellate process.

Proposal #4: We are an urgent need of an adult and functioning Senate that reasonably protects the rights of the minority party.  On November 21, 2013, Senator Reid (D. Nev) led the Senate Democrats to use the so-called “nuclear option” to eliminate the use of the filibuster on executive branch nominees and judicial nominees except for the Supreme Court.  When the Republicans took control of the Senate in 2015, they kept the 2013 rules in place and on April 6, 2017, Senate Republicans eliminated the remaining exception by invoking the “nuclear option” for Supreme Court nominees.  This was done in order to allow a simple majority to confirm Neil Gorsuch to the Supreme Court.  

The filibuster has had a long, and in many ways undistinguished and dishonorable, history.  It has been used in bad faith by both parties: first by the Democrats to support the suppression of blacks in the South for many decades, and then by the Republicans in their regimented opposition to everything Obama.  It is an imperfect tool.  And perhaps it should not or cannot be brought back for presidential appointments in the current political environment. In fact, it coul disappear altogether. 

But it ought to be possible before too long for special legislation to come into place that would require some type of “super majority” approval for Supreme Court nominees if not for other appointees. This would require agreement by significant elements of each party for any judge to be confirmed. 

I appreciate that I might be accused of extreme naïveté in thinking that any of these proposals are realistic.  Indeed, just a few weeks ago at the funeral of John Lewis, former President Obama raised the prospect of eliminating the filibuster altogether, characterizing it as a “Jim Crow relic.”   See The Atlantic: Why The Filibuster Could be Gone.  Maybe so, but if the Senate is no less fractious or partisan than the House, then it is very nearly pointless to have a Senate at all. Better perhaps to switch all the way to a parliamentary system where the legislature has literally all the power, appoints a prime minister to act as head of government – and can be held fully accountable for its use or misuse on short notice. But I digress. The beauty of a well-functioning parliamentary system is a topic for another day.  However, I will say this: the recent “cancellation” of the Founding Fathers and their works in many quarters may open the door a crack for the institution of a brand-new political system. A constitutional monarchy might look pretty good compared to what we have become.  Oprah might be the perfect monarch even. A beloved Head of State who is not the Head of any Government.  I am trying to remember why we fought a revolution against that in 1775.