The Supreme Court and Democracy
What (most) people get wrong about the court
Outrage sells. Political parties need you to think the court is part of today’s partisan battles, and the media benefit from your misinformed outrage as well. The truth is less terrible and more subtle.
Less power for the courts
Like others, I disagree with some recent Supreme Court decisions. But recent Supreme Court decisions are not a power grab so much as a conservative view that the Court is taking where it will only interpret laws based on their text and what Congress actually passes.
The alternative philosophy, where the Court interprets what is broadly aligned with general Constitutional and legal ideals, has lost out and will be out of favor for quite a while. This pushes much more power to the legislatures, but does not consolidate power in the courts.
This conservative approach cedes power, for the most part, rather than claiming it.
Non-partisan Conservatism
So yes, the Supreme Court of the United States is now (small-c) “conservative.” Yet this does not mean they are Republican or partisan, and few, if any of the justices, are Trumpers. After all, the Court interprets and derives its purpose from the US Constitution, and Trump (love him or hate him) is actively hostile to it.
Republicans do consistently appoint conservatives to courts in the sense that they find justices who tend to narrowly follow the letter of the law (both the Constitution and federal statutes) without interpreting it more broadly based on broad legal principles. In effect, this tends to force the government to govern less —it is just much harder for Congress to get something done than for nine justices to make a new interpretation of a law to expand or advance governance. This is particularly true in our current climate of divided government and do-nothing congresses. The Senate filibuster rule makes it almost impossible to do anything without very broad agreement.
In contrast, a partisan Court would be one that attempted to interfere in elections and the balance of power by participating in the political process rather than merely interpreting its outcomes (i.e. laws). For instance, consistently deciding that States have broad powers to conduct elections however they want is (small-c) conservative. It would be partisan and political to arbitrarily rule in favor of Republican shenanigans and against Democratic ones.
If you look at the Court’s decisions lately, they are quite conservative but not partisan. (At least so far in July 2022.) In fact, Justice Breyer wrote an insider account recently outlining how the court is not partisan.
[O]nce appointed a judge naturally decides a case in the way that he or she believes the law demands. It is a judge’s sworn duty to be impartial, and all of us take that oath seriously. — Justice Stephen Breyer
Non-partisan reasoning behind Court decisions
Here are brief explanations of why recent decisions, which are touted as anti-democratic partisan attacks on our democracy in the media, are actually non-partisan, even if they are conservative in outlook:
Dobbs v. Jackson Women’s Health (abortion)
This recent ruling found that: “The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.” The ruling does not ban abortion but demands that Congress or State legislatures figure out for themselves what is legal and when. This is “conservative” in that the Constitution did not mention abortion, and historically abortion rules are all over the map, so there was no previous law to interpret that would protect or establish a right to abortion. Congress can make abortion legal tomorrow if they want, but the Court is out of that business as of a couple weeks ago.
New York State Rifle & Pistol Association v. Bruen (guns)
People would have you believe that the Court is allowing guns all over the place without restriction, but in fact, the Court primarily found that States can’t impose arbitrary restrictions without a clear standard. The NY law allowed people to carry weapons only if a “magistrate” determined they were “of good moral character” and had a “special need.” Six states had these discretionary policies, and 43 did not.
Because these magistrates could be arbitrary or could discriminate against people who are poor, Black, Muslim, or not politically connected, this was found to be a violation of due process rights. As Kavanaugh wrote:
The Court’s decision addresses only the unusual discretionary licensing regimes, known as “may-issue” regimes, that are employed by 6 States including New York. As the Court explains, New York’s outlier may-issue regime is constitutionally problematic because it grants open-ended discretion to licensing officials — Justice Kavanaugh Concurrence
NY and other states can still impose objective standards and rules for gun ownership and carry, including requiring training, mental health evaluations, secure storage, bans on concealed carry, etc. But they must now be objective standards applied to all people, regardless of race, income, or political influence. As such, it clearly diminishes the power of the bureaucracy and is, therefore, “conservative” but not necessarily political.
Kennedy v. Bremerton School District (prayer, religious expression)
Here the Court found that the Government cannot regulate “private” prayer even at a school event. I personally disagree with this one because Kennedy chose to pray in a public, central place, on the 50-yard line; he could have found a quiet spot off the field and prayed his heart out. But again, this is about reducing Government intervention in people’s lives. In other cases, such as rulings around limiting church attendance during the pandemic, the court similarly recognized that practicing one’s religion is specially protected with an explicit mention in the 1st Amendment. You can regulate gatherings in a church (or temple or mosque) but not more severely than you regulate attendance at a casino or liquor store.
However, the court has not taken any pro-Christian or anti-Muslim, or other biased views, and their rulings apply equally to all religious expression or to the expression of atheist views.
Pushing the law to the legislatures
Generally, the court has been empowering legislatures and giving up power rather than seizing power. Abortion and voting mechanisms now rest with state legislatures and Congress. There is no barrier to nationwide voting regulations or to a nationwide rule allowing abortion other than the fact that those measures do not have the votes in Congress right now.
Even as many of us disagree with the Court, we should respect that they are interpreting the law to the best of their ability, ceding power to Congress, and trying not to skew politics in favor of one party or the other.
This view does not get clicks on the internet, it does not drive more donations for either party, and it is not a view that works in the outrage-industrial complex. But it is a correct view that can work for our democracy.
De-legitimizing the courts is like de-legitimizing elections.
There is some temporary political benefit, but it spins and distorts the truth at best and is outright disinformation at worst. It will do more harm than good in the end.
