What we require is not judicial restraint, but a different sort of judicial engagement that develops the traditions of republican government.
The Supreme Court is lost. Sunday night’s debate settled that. The question now is not how to save the Court but rather how to navigate an adverse one, and the answer is to deprive it of power.
The constitutional takeaway from the debate was that Justice Scalia’s successor will be appointed by a President who believes judges should decide constitutional cases on the basis of empathy, and who therefore makes a wholly normless case for protecting Obergefell and Roe while overturning Citizens United, or by one who promises to jail his political adversary, who cannot distinguish a felony from “locker-room talk” and who is incapable of articulating a constitutional philosophy beyond name-checking the Second Amendment.
Yuval Levin and Ramesh Ponnuru have written the definitive brief on the anti-Constitutionalism of Hillary Clinton’s Progressivism. Donald Trump on Sunday, as before, supplied the equally definitive case for the anti-Constitutionalism of Donald Trump. The “save the Court” case—the last refuge of the Trump apologist—now lies in tatters.
Asked at the debate what kind of justices she would appoint, Clinton replied with a soliloquy about “real-world experience.” Apparently the real world supplies a principle by which, mirabile dictu, the Court would uphold cases with whose policy outcomes she agrees (Roe, Obergefell) while overruling those to which she objects (Citizens United).
Meanwhile, Trump’s reply, which contained not a word of actual constitutional reflection, was a hat tip to Scalia and the Second Amendment along with his vaunted (and “beautifully reviewed”) list of judges. But his most significant constitutional moment had come earlier, when he pledged not merely an investigation of Clinton but announced its conclusion (a prosecution) and the prosecutorial outcome (“you’d be in jail”).
We are not, suffice it to say, dealing with constitutionalists. It would also be well to recall that appointing Supreme Court justices is not the only, perhaps not even the primary, impact presidents make on the Constitution. They also set precedents in presidential practice. They hoard or share authority. They respect tradition or veer in new directions.
If the question, then, is how to navigate a constitutionally adverse judiciary—not to mention White House—the answer on both principled and political grounds is to deprive the Court, and the presidency, of power and restore it to the Congress.
The principle begins not with the role of the Court in the American scheme but rather with the role of power. It is regarded with measured suspicion—not the “neurotic terror” of Louis Hartz’s accusation, for the framers understood the need for authority and sought to establish it, but a reasonable wariness that bridles power and channels it.
“Wherever the real power in a Government lies, there is the danger of oppression,” Madison wrote. Madison believed the real power lay with majorities, whose deliberation must therefore be encouraged. The underlying principle, previously elucidated by Shakespeare and later taken up by Bertrand de Jouvenel, is that power is inherently dangerous and that flirting with it situationally—for power when it suits one’s priorities, against it otherwise—is a fool’s game.
The concentration of power is thus to be avoided. Madison’s warning in Federalist 48 against the “impetuous vortex” of legislative ambition teaches a similar lesson: not simply to watch Congress, but to watch power, wherever it may be.
And wherever it may be, it decidedly is not with Congress today. Congress is supine before a dominant president and an arrogant and unchallenged court. One reason for the latter is that judicial power regained a degree of popularity on the right around the time the right regained a degree of judicial power. Judicial engagement types who tirelessly advocate for a federal judiciary clothed with immense power may get their wish, but the victuals they are served won’t be what they ordered.
Still, it is not too late to limit the size of the feast. That depends on two elements of constitutional morality: an appropriate understanding of a judge’s role and, to secure it, restoring a system of separated powers to which the judiciary, like other branches, is subject.
That a judge’s proper role is constitutionally modest and limited to applying the law to the case before him is inherently conservative. It is rooted in suspicion of concentrated power and a confidence in the deliberative processes of self-government.
When William F. Buckley said he would rather be governed by the first 2,000 names in the Boston phone book than by the Harvard faculty, he might also have mentioned the Supreme Court in the latter category. When Robert Bork—a martyr to the legal right until libertarians decided he was, in Randy Barnett’s unfair formulation, a “moral nihilist”—wrote that “in wide areas of life majorities are entitled to rule for no better reason [than] that they are majorities,” he followed James Madison’s republicanism.
In Federalist 10, even while inveighing against majority factions, Madison acknowledged their title to rule: In a dispute to which majority factions were parties, “the parties are, and must be, themselves the judges; and the most numerous party, or in other words, the most powerful faction, must be expected to prevail.” (emphasis added) Federalist 51 similarly rejects solving the problem of majority abuse “by creating a will in the community independent of the majority, that is, of the society itself.”
What that essay offers is a system that limits the damage any one branch can do without cooperation from the others. Hamilton tells us in Federalist 78 that judicial usurpation need not be feared in part because the judges depend on executive enforcement of their decrees, which is only a reason not to fear if that enforcement is discretionary.
Congress has other tools at its disposal, from impeachment to altering the size of the Court. It is true that many of these are ultimate tools—though not all are; laws can be repassed over judicial objection, for example—but the justices are winning a game of constitutional chicken whereby the assumption is that legislators will not employ them. Using them once might be all it takes to remind the court they exist.
Meanwhile, depriving the next president of authority—such as by ending the emasculating process of omnibus appropriations, refusing all White House priorities if the president usurps Congressional priorities, cutting off funds and the like—would also do much to curb lawlessness.
The current campaign has made the case for Congress in striking terms. The presidency can be seized by impulsivity. Corrupting five of nine justices—that is, corrupting them constitutionally, with inflated notions of importance—takes little imagination. That the most consistent complaint against Congress is inactivity is a compelling reminder of the difficulty of coopting the totality of the legislative branch. If power is the problem, then dispersal, and consequently Congress, is the answer.
There will be voices for constitutionalism in Congress next January. How many depends on how many more fires Trump or Clinton set. But there was no such voice at the debate Sunday night. So deprive those on the stage, one of whom will occupy the White House, of power. Deprive the justices that one of them will appoint of power. Then restore it to the legislative branch where, constitutionally, it already belonged.