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The proper role of the U.S. Supreme Court
What should be the role of the Supreme Court in the U.S.? People constantly complain about “activist” Supreme Court decisions, where justices overturn laws or “make law” based on their personal policy preferences as opposed to constitutional principles. Conservatives complain that Roe V. Wade (link), the decision that declared abortion to be a constitutionally protected right, was an activist decision, and that the “right to privacy” which the abortion right was partially based on in Roe isn’t in the constitution and thus shouldn’t be protected.
Liberals often say that decisions such as Heller V. District of Columbia (link), which overturned Washington DC’s ban on handguns, was an activist decision, because the Second Amendment actually doesn’t protect an individual right to bear arms but instead only protects a “collective” right, a right to carry a gun only if you serve in a militia, such as the state police or the national guard.
Both liberals and conservatives sometimes say that the Supreme Court should have no or virtually no power to overturn democratically enacted laws, because they were decided by the people. Many claim that democracy is essential to this country and it’s wrong for the Supreme Court to interfere with the people’s policy preferences and overturn them, especially since Supreme Court justices aren’t elected and are appointed for life. Why should the people’s will be denied?
Libertarians, on the other hand, believe the Supreme Court expresses a vital function and a check on tyranny of the other branches by overturning laws that violate the constitution; they claim that the founders were afraid of an out-of-control executive and legislative branch, and even that they were equally afraid of a “tyranny of the majority,” that the people’s will often results in policies that violate fundamental rights. Thus, they disagree with both liberals and conservatives and think the Supreme Court should play a more “activist” role in overturning democratically enacted and unconstitutional laws.
I personally come closer to the libertarian view on this than the liberal or conservative view. I think the Supreme Court should overturn democratically enacted laws when they violate the constitution, and this can indeed be an essential check on the tyranny of the legislative and executive branch of government and often even state governments. Sure, you could argue that at least Presidents and legislatures are elected and so the voters should serve as the best or only check on government power and decide on all or almost all policy issues. After all, you don’t elect Supreme Court justices. How can we make sure the Supreme Court doesn’t overstep its bounds and becomes a “tyrannical” branch itself?
I would respond that the Supreme Court isn’t the one writing unconstitutional laws. Most of what the Supreme Court does involves either overturning a law or letting a law stand. Thus, even Supreme Court decisions I don’t like aren’t necessarily as bad as Congress passing any law it wants and the only check on that is the electorate possibly voting them out. Take Gonzales V. Raich (link) for example. This is a Supreme Court decision that I would put in the category of bad. It said that the federal government has the right to regulate homegrown medical marijuana in states where it is legal under the commerce clause. I disagree and don’t think marijuana prohibition should be a role for the federal government; it should be left up to the states. But the Supreme Court didn’t rewrite the law here. It simply let a law stand. While I would have preferred for the court to overturn marijuana prohibition, the fact that it didn’t isn’t as bad as the federal government actually deciding to do it in the first place. I can’t get all I want from the Supreme Court of course, but the electorate is often wrong on questions of certain fundamental rights, and even when they aren’t, it’s not exactly easy for those people to get their way when we have limited choices in our country. We only have two major parties, and I’m sure even dedicated Republicans and Democrats don’t always agree with all of the policies of their party (to say nothing of unaffiliated voters like me), much less how the parties actually govern when they get into power. For these reasons, I think the people’s will should often be overruled if the law in question is unconstitutional.
Of course, I’m not the type who thinks there should be no democracy. I believe ballot initiatives have their place, and I also don’t think there should limitations on voting based on whether you pay the income tax, or whether you can pass a civics test. I don’t think uninformed people should vote, but the farthest I’m going to take that is to simply say I would prefer they didn’t, not that they shouldn’t be allowed to. On the other hand, I have no problem with the Supreme Court protecting such fundamental rights as free speech and the right to bear arms, even if it does override the will of the people. I would also prefer the court limit the use of the death penalty or overturn state sodomy laws (which it has done), but I am unsure whether that should be constitutionally required or not, and I don’t necessarily have a coherent “judicial philosophy.” Despite that, it seems pointless to even have a Supreme Court if we aren’t going to allow it to sometimes override the will of the people.
The court’s current limited role
I also think the Supreme Court should have an even bigger role in overturning unconstitutional laws than it does now. The Supreme Court only tends to take a case when it deals with questions involving a specific right laid out in the constitution. Since most rights protected in the Bill of Rights deal with civil liberties, like free speech, gun rights, the right to a jury trial, etc, current commentators and even some justices seem to think this is the only area it should get involved in. I disagree. I think the Supreme Court should get more involved in economic liberty questions as well. Since the New Deal, the current consensus among supreme court justices is that the court has no right to get involved in issues of economic rights, like it used to prior to the new deal; those rights aren’t “fundamental” and they should be left up to the will of the people. But this makes no sense to me. Why should economic liberties be left to the will of the people and not civil liberties? The distinction doesn’t make sense, especially considering that economic issues effect more of people’s daily lives than social or civil liberties issues After all, everyone gets an education, usually at a public school; everyone either works and pays taxes, or gets unemployment or disability etc. All these areas have a bigger effect on your life than whether we kill a death row prisoner, or whether a guy in a bad neighborhood can own a gun, or whether you can donate money to a political campaign. Don’t get me wrong; both areas are extremely important, but I see no reason why the court should only get involved in one area and not the other. Still, I’m admittedly less supportive of the kind of economic liberty that libertarians support than I am of their civil liberties views. But that’s kind of irrelevant when we’re dealing with a legal principle and not my personal policy preferences. I’m agnostic on what form this new concern for economic liberty questions should take. Should the Supreme Court overturn Obamacare, minimum wage laws and certain economic regulations? I’m somewhat undecided, but I do think these kinds of questions should be before the court as opposed to just thinking they should be left to the will of the people.
And this dismissive attitude toward economic liberty is how you get horrid and universally reviled decisions like Kelo V. New London (link), which claimed that state governments have a right to take private property from some individuals and give it to other private parties under the takings clause of the Fifth Amendment. The vast majority of the public, according to the polls (link), oppose this decision, which is a far more universal consensus than you get with other Supreme Court decisions.
The ninth amendment matters
Also, here’s another pet peeve of mine: current Supreme Court commentators and even some justices think that the court should only take a case if it involves the possible violation of a specific right spelled out in the constitution. Specific rights, such as free speech and press, free exercise of religion, the right to bear arms, the right to be free from unreasonable searches and seizures, the prohibition on “cruel and unusual” punishment, etc, have now all been incorporated to the states, for the most part. The fourteenth amendment (link) arguably incorporates the Bill of Rights to the states, meaning that states aren’t allowed to violate the Bill of Rights like they were prior to the civil war. But some act like only the rights specifically spelled out in the constitution should be protected, or incorporated to the states. This seems totally illogical considering the wording of the ninth amendment, which states, “The enumeration in the constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This pretty clearly seems to be pointing out that the rights spelled out in the Bill of Rights aren’t the only rights the constitution protects. The only relevant question is what those rights are. I don’t have enough knowledge to know for sure what other specific rights are protected under this; but justices should at least make a good faith effort to figure it out. When conservatives state that the right to privacy isn’t in the constitution and shouldn’t be protected, I disagree. The fourth amendment’s prohibition on unreasonable searches and seizures seem at least somewhat related to privacy. Also, I suspect a right to privacy would probably be basic enough to be covered by the ninth amendment as an un-enumerated right, although I’m not 100% sure. In any case, the court has sometimes recognized some un-enumerated rights, such as a right to marriage or abortion, so it’s clear that the court doesn’t always just address rights specifically spelled out in the constitution. But it should make a more serious effort to find out what other rights the founders intended to be covered by the ninth, and we certainly shouldn’t be acting like the ninth amendment doesn’t matter, doesn’t mean anything, or is an “ink blot” (as Robert Bork, a conservative supreme court nominee who ultimately failed to be confirmed called it).
Free speech, citizens united, and democracy
In the end, though, the will of the people usually wins out, regardless of what the Supreme Court says. For example, the majority of U.S. Citizens believe that the Citizens United vs. FEC decision (link) was wrongly decided. That decision overturned the ban on corporate or union funding of a political advertisement during an election season as a violation of the first amendment. I happen to agree with this decision, and strongly disagree with most of the public’s view on this. But let’s face it: If me or other advocates of the first amendment don’t convince those people that they’re wrong, they’re going to win out, because the younger generation tends to be more supportive of free speech restrictions than the generation currently in power. For example, according to a 2013 first amendment center survey (link), 47% of 18-30 year olds agree with the statement that “the first amendment goes too far in the rights it guarantees,” as opposed to 44% of 31-45 year olds, and only 24% of 46-60 year olds. The oldest generation, which includes the people currently on the supreme court, supports more free speech rights than younger, generations, and are probably why there is such rigorous protection for free speech rights currently in the court’s jurisprudence. But eventually, those people will die off and younger people will be appointed to the Supreme Court, and people will get their campaign finance “reform.” While I hope that never happens, I’m just pointing out that ‘people’s will” will probably always eventually win out, regardless of what the Supreme Court currently does. That’s probably the way it should be, but I still think the Supreme Court should always overturn laws that violate the constitution regardless of the will of the people, because it serves as a check on government.
Note: I have provided links throughout this hub to overviews and pdf’s of supreme court decisions as well as poll numbers and constitutional info, which I hope will be of good informational use to readers, but I’ll provide a link to the original ten amendments to the bill of rights here for those who may be interested: http://billofrightsinstitute.org/founding-documents/bill-of-rights/