What does it look like when the Supreme Court loses its legitimacy? We don’t want to find out.
Now that Brett Kavanaugh has been appointed to the court after a long and incredibly messy confirmation process, some have suggested this is the moment the institution loses its standing in the eyes of the American public.
It’s the perfect assertion for our overheated times. But the court building still stands, the justices are still hearing arguments — Kavanaugh will apparently start hearing cases on Tuesday — and they’ll still make rulings that span the range of American political and legal life. Does the court really need legitimacy to do its work?
For more than 200 years, the Supreme Court has served as the final word, more or less, on the hot constitutional issues of the day. But that power, known as “judicial supremacy,” isn’t written into the Constitution — the court claimed it back in 1803 in Marbury v. Madison. Americans have mostly agreed to go along with it ever since.
But what if they didn’t? There are already rumblings on the left that it’s time to stop letting the court have the last word.
“Both liberals and conservatives have at points decried judicial supremacy,” Slate writer Jamelle Bouie tweeted Saturday, “and the pendulum seems to be swinging toward liberal opposition to the Court as final arbiter of constitutional questions, as it again threatens the ability of lawmakers to regulate economic life.”
While judicial supremacy has the power of tradition and consensus, there have been challenges over time. Perhaps most famously, in 1832 President Andrew Jackson ignored a Supreme Court ruling involving Native American rights in the state of Georgia. “John Marshall has made his decision,” he reportedly said. “Now let him enforce it.”
The story may be apocryphal. The spirit of it, however, has remained alive in the American tradition — particularly in conservative politics of recent decades. Brown v. Board of Education provoked resistance across the South, but President Eisenhower backed the court by sending troops to Little Rock.
Even as conservatives and the Federalist Society pursued a long game of capturing a court majority in recent decades, they also pushed to delegitimize the court in a fashion that amounted to a soft challenge of judicial supremacy. With every left-leaning ruling came complaints about “unelected activist judges” — a suggestion that, in American democracy, the courts should defer to elected branches of government.
Of course, it’s easy to advocate for limited government authority when your ideological faction spends most of its time out of power, and those notions often change when power is acquired. Ideas about challenging judicial supremacy developed when liberalism was ascendant in the United States. Indeed, a conservative Supreme Court hasn’t always been deferential to the judgments of elected officials — witness, as a prime example, the gutting of the Voting Rights Act by the Roberts Court back in 2013. And the eagerness of conservatives to overturn ObamaCare through lawsuits suggests that deferring …read more
Source:: The Week – Politics