I’ve written about the Supreme Court more than once because I’m continually surprised at not only what people think the job of the Court is, but that most don’t have a basic understanding of the Court’s role in decision making.

This is not to look down my nose as I sit on my lofty perch above the huddled masses. Truth is, I have no perch other than the chair in front of my desk, but if I had one, I’d hardly use it, preferring the huddled masses to rarified air. What continually strikes me, however, is how far we’ve strayed from the Court’s mandate and how politics, political leanings, and simple outright disregarding for the role the Court plays is manifest, even by members of the Court itself.

Let’s Set The Stage

This is a simple one, and should not matter which side of the political divide one is on. The Court was designed to be the least noticeable branch of the federal government. In other words, like many of the apps on your computer or iPad, it was supposed to run in the background, the populace hardly noticing at all.

This changed with the Marbury v Madison (1803) decision which established judicial review, but even with that decision (the merits of which some still debate), the Court, to the general public, was barely noticeable.

Secondly, the Court was to decide cases on one basis point only…just one. Constitutionality. That’s it, nothing more. Is the case brought before the Court constitutional or not? This is termed strict constitutionalist, sometimes referred to as judicial restraint, meaning, either it (whatever it is) is in the Constitution or it is not. Simple, right? That’s how it’s supposed to be. There is to be no political affiliation tied to said Court’s decisions, no consideration of politics at all. Something is either Constitutional or it is not.

Interesting to note when President Washington was staffing the courts after their creation in 1789, his criteria was loyalty to the Constitution first. “One had to have been part of the federalist movement that supported ratification of the Constitution.”*

Over the years, the line has blurred with politics seeping through the constitutional walls. Only twelve years later, President Adams required membership in the federalist party a requirement for appointment.* Still, the Court remained largely benign…until…the 1950’s when the Warren Court took the next step, becoming a more “activist” court, the lines almost erased in terms of constitutional interpretation. The result? The Court became much more activist.

Activist, in the judicial sense, means the Court should make decisions not in the strict constitutionalist mode, but literally be more active, attempting to make the Constitution relevant to the times in which it exists. Admittedly, some of the Warren Court’s judicial activism was not only proper, but needed (of course, these are only a few of the cases):

  1. Miranda v. Arizona (1966 – Be informed of your rights at arrest)
  2. Loving v. Virginia (1967 – the freedom to marry – in this case, interracially)
  3. Gideon v. Wainwright (1963 – right to counsel being extended on the state level as well as federal level)
  4. Brown v. Board of Education (1954 – ended segregation in schools), effectively ending the doctrine of separate but equal established by Plessy v. Ferguson (1896).

However, in other instances, the Court, in its quest to go beyond the Constitution and drag society into the modern period overstepped its bounds, the most glaring of which is arguably the most divisive today…abortion rights.

The Warren Court, in a controversial decision, upheld Roe v. Wade in 1973, making abortion legal throughout the country. Most constitutional scholars, along with the late Justice Ruth Bader Ginsburg, agree on a constitutional basis, the decision was wrong* – judicial activism overstepping its bounds. The primary reason for such criticism being there is nothing in the Constitution regarding abortion, thereby rendering the Court moot – it should not have ruled either in favor or against – it is a states’ rights decision (according to the 10th Amendment). Further, states were moving in that direction (legalizing abortion) anyway before the Warren Court’s decision.*

Judicial Activism seeks to speed up the process rather than allow the nation to advance at its own pace. Here is a Newsweek quote that summarizes the problem of the Warren Court 10 years after the Brown v. Board of Education decision:

“The Court is the most progressive institution we’ve got” says one law professor. But others insist it is too doctrinaire, too eager to right what it takes to be wrong, too much concerned with grand abstractions of liberty at the expense of the orderly growth and continuity of the law. “When you’re trying to carve out new ground in an institution that is nominally committed to the past, you have to cut corners,” a defender insists. But a critic contends: “The Court’s been making law wholesale rather than retail.”

What Now?

Suffice it to say, there is wide disagreement on the Court itself with regard to activism or strict constitutionalism. But…if we claim to be a constitutional republic (we are NOT a democracy…but rather a republic with democratic principles) then must we not behave as one?

If so, there is only one recourse…strict constitutionalism with regard to judicial review. There is no other way. The wheels will turn slower, but there is a reason for this – societies need time to adjust, as a sharp turn in the wheel often causes a crash.

This is why Justice Elena Kagan’s remark the other day is so alarming. She said, “Time will tell whether this is a court that can get back to finding common ground, to ratcheting down the level of decision-making so that we can reach compromises.”

Constitutionally speaking, this is a major problem. The Court and its members are never to compromise with each other, making deals in order to reach a decision. Either the case is constitutional or it is not. Further, her comments smack of politics and one’s position in the political aisle as a significant factor in producing a decision…something blatantly incorrect and outside the Court’s purview…if one is to follow strict constitutionalism.

Noticeably, this is stated by Justice Kagan when the liberals (read: judicial activists) are in the minority and the conservatives (read: judicial restraint) are in the majority. This is not the first time the minority members of the Court have stated their displeasure at the current Court’s makeup, as well as the current administration, which is why there are calls for expanding the Court by the left side of the political aisle (as President Roosevelt wished to do when the Court declared so much of the New Deal unconstitutional).

Where Do We Go From Here?

There is no question our nation is divided more so than ever, with the exception of just before the Civil War. Ideologically, we’ve become factionalized in the extreme: those on the far left (to be distinguished from those on the left) who desire an actual hot civil war and wholesale changes, even a tearing up of the Constitution. On the other end of the spectrum, there are those on the far right (to be distinguished from those on the right) who would also like to see a hot Civil War along with a return to how things “used to be” whatever that might entail, in the extreme.

Both sides are wrong, and dangerous, and should be reigned in. Whether it is burning and looting entire neighborhoods, or assassinating police officers in the name of social justice or engaging in the despicable display at the nation’s capital on January 6th, both sides should be held accountable.

However, amidst the sturm and drang should exist the Supreme Court, a calm among the raging waters, coldly, rationally and constitutionally rendering decisions based on constitutionality alone, and nothing else, for only then will there be a rational voice in the sea of madness, serving to moor our sensibilities and passions.

*James Madison and the Judicial Power | The National Constitution Center

*Justice Ginsburg also said she believed abortion was constitutional, but that Roe “went too far, too fast”, acknowledging abortion rights were evolving on a state level, and preferring a legislative answer rather than the hammer on anvil of the Court’s decision.

*This article is not arguing the merits of, or the efficacy of, abortion. Rather, simply using that case as an example of judicial activism.