Ross Douthat has some suggestions on how to rein in the wildly out of control Supreme Court.
Complaints about the Supreme Court’s power are almost as old as the Constitution, but they have more merit now than ever. According to calculations by the Harvard law professor Jed Shugerman, the Court has gone from overturning roughly one state law every two years in the pre-Civil War era, to roughly four a year in the later 1800’s, to over 10 a year in the last half-century. So too with federal law: Prior to 1954, the Court had struck down just 77 federal statutes in a century-and-a-half of jurisprudence; in the 50-odd years since, it’s overturned more than 80. Under Chief Justice William H. Rehnquist, the Court invalidated federal statutes at an unprecedented rate — and by the barest of majorities, in many cases. In one eight-year period, the University of Michigan’s Evan Caminker has noted, the Court invalidated 16 Congressional statutes by a 5-to-4 vote, something that had happened just 25 times in the previous two centuries.
The public doesn’t seem to mind this increasing assertiveness: The Supreme Court regularly shows up in polls as the most respected branch of government. But settling so many vexing controversies with 5-to-4 votes — effectively making Anthony Kennedy the nation’s philosopher king — is an awfully poor way to run a republic.
He acknowledges that both liberals and conservatives have turned to the Court to end-run Congress and state legislatures to achieve their means, and to some degree they’ve had some success.
I’m not a legal scholar, but it seems to me that part of the reason for the rising number of cases going to the Supreme Court has more to do with the fact that there are more laws being written and more interest groups finding their voices in challenging the laws. It’s not that the Court has gotten out of hand; it’s that the Court has been overwhelmed by the flood of lawsuits that each plaintiff thinks must be heard by the highest court in the land. We’ve gotten to be a litigious nation; everything is grounds for legal action. Hot coffee spilled in your lap? A bad paint job on your BMW? A hole burned in your trousers? Don’t get the results you want in an election? Sue the bastards. The right wingers like to blame the trial lawyers — and will go to court to prove it — but it’s also the courts and the judges who don’t slam down the gavel and order the litigants to get the hell out of their courts and settle up like adults.
Mr. Douthat sees political motivations behind the Court’s activism — it’s the Justices’ way of enforcing or striking down laws they don’t like — and therefore he has some suggestions as to how to rein them in, including term limits of twelve years instead of lifetime tenure. It’s ironic that someone who is opposed to judicial activism would suggest re-writing the Constitution to solve what he perceives to be a problem. Yet the lifetime tenure on the Court does guarantee a degree of insulation from political whims and blackmail, and the Court is designed to outlive both the branches of the government with which it shares power; Congressional majorities and presidents come and go with regularity, but the Court is comparatively steady. Justice John Paul Stevens has been on the bench since the Ford administration, outliving both the president who appointed him and the Senate that confirmed him, and Chief Justice John Roberts is in his mid-fifties; he could serve for another thirty years. Our laws are already political enough in nature; adding one more wrinkle to their interpretation would only make it worse. Changing the rules of the Supreme Court has been tried before, most notably during the 1930’s when the Court ruled against Roosevelt’s New Deal programs. He tried to pack the court and overwhelm the “nine old men” who weren’t going along with him. It was a blatantly political act then, and Mr. Douthat’s suggestion isn’t much less than that.
Mr. Douthat’s suggestion is a bit like suicide: a permanent solution to a temporary problem… if you accept the premise that interpreting the complex issues of the 21st century with a constitution written in the 18th century is a problem. So far it seems to be working. We all may not like the results, but the laws and our courts should be strong enough to withstand the whims of Congress and the current administration… and the ones that come after.