What Do You Think?
The Myth of the Heroic Supreme Court of the United States has Outlived it's Usefulness
It is time to change our thinking about our highest judicial body.
December 5, 2004
By JEFFREY ROSEN, NY TIMES
The next Supreme Court nomination could provoke a partisan eruption unlike anything America has seen since the battle over Robert Bork in 1987. The Supreme Court today occupies a central role in the American psyche because we expect it to have the last word on the most contested questions of our national politics. In the 50 years since Brown v. Board of Education, Americans have imagined that the justices could protect vulnerable minorities from the excesses of democratic politics. From affirmative action to school prayer and presidential elections, the court has enthusiastically accepted the invitation to answer the divisive political questions that politicians are unable to resolve.
Americans are not alone in imagining that courts can and should have the last word in the most intractable political disputes. Since World War II, more than 80 countries have transferred a startling amount of power from elected legislatures to unelected courts. As Ran Hirschl points out in his recent book ''Towards Juristocracy,'' citizens and political leaders around the globe are turning fervently to judges to resolve political stalemates. The high courts of South Africa, New Zealand, Canada and Israel, for example, have been asked to decide matters that go to the heart of their countries' national identities -- from the question of who is a Jew in Israel to the effort by Quebec to secede from Canada. As a result of this international craze, the belief that judges can be engines of social change has achieved ''near-sacred status,'' Hirschl writes.
But this near-sacred belief turns out to be a myth. Far from protecting vulnerable minorities or promoting social and economic justice, the newly empowered high courts around the world tend to side with political elites in their efforts to entrench the status quo. The rights that constitutional judges are trained to protect -- like free speech, fair procedures and property rights -- prevent the government from meddling in citizens' private lives, but they can't require it to spend money on health care or eliminate poverty. In conflicts between free-market values and the regulatory or welfare state, judges usually favor Adam Smith over big government. And European countries with relatively small social and economic disparities -- like Norway and Sweden -- have not embraced American-style ideas about judicially enforceable rights.
In America, too, the widespread belief that our Supreme Court is a powerful engine of social change is naive at best. Throughout history, the Supreme Court has tended to follow national opinion rather than challenge it. For all the invective that it initially generated, Brown v. Board of Education was actually popular with a narrow majority of the country, as were many of the most controversial decisions by the Warren, Burger and Rehnquist courts.
Instead of protecting minority rights against tyrannical majorities, the Supreme Court tends to follow national opinion, as reflected in the election returns. Moreover, on the rare occasions that the courts have tried to impose an outcome that is intensely unpopular, it has tended to provoke a strong political response. After the Massachusetts Supreme Court decreed a right to gay marriage and local officials in California responded by marrying gay couples in defiance of state law, 11 states passed constitutional amendments this past Election Day that ban gay marriage. That is hardly consistent with a vision of judicial heroics.
If courts tend to support the mainstream of American opinion rather than challenge it, why do Americans persist in indulging the myth of judges as heroic guardians of the nation's better self? Part of the myth results from the legacy of the 1960's: some of my teachers in law school came of age during the heyday of the Warren Court, which shaped their romantic view of judges as protectors of the downtrodden. The myth is also fostered by the Supreme Court itself, which has become increasingly addicted to a rhetoric of judicial supremacy, grandiosely -- and misleadingly -- suggesting that judges have the unique power to save the nation from its most intractable political disputes. Then there is the tantalizing obscurity of the court -- a rarity in a celebrity culture. By wisely resisting the scrutiny of TV cameras, the justices have managed to sustain a mystical aura of authority long after the other branches of government have been overexposed. When William Rehnquist retires after nearly 35 years, he will have been one of the most influential chief justices in history. Yet most Americans will not recognize his name or face.
But although the myth of the heroic court may serve a psychic need, surely it has outlived its usefulness. Throughout American history, the people most fervently devoted to judicial supremacy have been political losers -- from the conservative Federalists of the 1790's to the Democrats of the Civil War era to conservative Republicans during the New Deal. Today, the groups most anxious about the Supreme Court battles ahead are once again those whose beliefs have been repudiated by a majority of the country -- from the social conservatives who want a chance to resurrect statewide bans on early-term abortions to the liberal egalitarians who want to resurrect the Great Society welfare state by judicial fiat. Both of these special-interest groups are bound to fail in their efforts to persuade courts to reverse their political defeats because courts rarely impose values that a majority of the country rejects. And on the few occasions when they have tried in the past, they have usually provoked a swift and democratic rebuke. In the wake of another polarizing election, as we contemplate the transformation of the Supreme Court, perhaps it is time to acknowledge that courts can't and won't and shouldn't save us from politics.
Jeffrey Rosen, the legal affairs editor of The New Republic, writes frequently for the magazine.