The confirmation of a Supreme Court justice never should matter as much as Brett Kavanaugh’s did, and that’s because the Supreme Court itself shouldn’t matter as much as it does today. That’s the conclusion of many legal observers—me included—after witnessing the partisan warfare in Washington over the past three months. In a New York Times op-ed last week, Pepperdine University law professor Barry P. McDonald wrote that the Kavanaugh hearings reflected the “unfortunate fact” that the “court has become a political actor that wields excessive power in our democracy.”
“Americans have become so used to having the Supreme Court decree the country’s policy on such vital matters as abortion, gun rights, same-sex marriage and campaign finance that they assume this is how the court is supposed to function. But that assumption is mistaken,” he wrote. “Our nation’s founders would blanch to see how different the court is today from their conception of it. Only if we can figure out how to restore the Supreme Court to its intended role can we avoid a future in which a court nomination continues to be capable of tearing our country apart.”
But how can we restore that intended role? How can we make the court less important—that is, less powerful? As with many problems in Washington that have gone unsolved, the answer lies with Congress.
McDonald was right that many of the nation’s founders “would blanch” to see today’s Supreme Court. “When the founders established our system of self-government, they didn’t expend much effort on the judicial branch,” he wrote. “Because the political branches of government—those accountable to the people through elections—were expected to run things. The courts could get involved only as was necessary to resolve disputes, and even then under congressional supervision of their dockets.”
That certainly was the expectation of most of the delegates at the Philadelphia convention who drafted the Constitution, and those in the state ratifying conventions who favored its adoption. But it was not “widely recognized that the Supreme Court was the least important of the three branches,” as McDonald claimed. In fact, many prominent critics of the Constitution were convinced that the federal judiciary empowered in Article III was a budding instrument of tyranny.
As a result, the design of a national court system became one of the main sticking points impacting ratification—especially in two critical states, Virginia and New York.
In Virginia, the ratification debate featured a battle between the brilliant and flamboyant orator, Patrick Henry, who bitterly opposed the Constitution, and the equally brilliant, but more methodical James Madison. Henry argued that, with slavery as a potential area of adjudication, no Virginian could hope to get a fair trial in a court removed from his home state. He reportedly told his brethren, to laughter, “They’ll free your niggers!” But Madison, abetted by another delegate, John Marshall, convinced his fellow Virginians that a federal court system would protect their interests, and the Constitution was ratified.
In New York, ratification was even more vital, since a rejection of the plan would have cleaved the nation in two. And there was widespread sentiment against ratification.
The battle between those in favor and those opposed was waged in competing newspapers. On October 18, 1787, one month after the text of the Constitution was published in the Pennsylvania Packet, an article appeared in the New York Journal signed by “Brutus,” addressed “To the Citizens of the State of New York.” Brutus would pen 16 such essays, fully five of them devoted to the judiciary.
In his eleventh essay, Brutus prophetically warned, “Courts of law will give the sense of every article of the constitution that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution that can correct their errors or control their adjudications. From this court there is no appeal.” The upshot to Brutus was that for Supreme Court justices, exercise of this virtually uncontrolled power “will enable them to mould the government into almost any shape they please.”
Nine days after Brutus’s first essay appeared, an essay was published in the New York Independent Journal, addressed “To the People of the State of New York,” and signed by “Publius.” There would be 85 of these.
In the seventy-eighth, Publius assured the people of New York that federal courts would turn away tyranny and be the relentless defender of the weak against the powerful. He insisted that the judiciary was the one branch of government that represented “the people” themselves: “It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” And, as further reassurance, he noted that the judiciary would be the “weakest of the three” branches of government.
Readers of those newspapers never knew the identity of the authors. Publius was later revealed to be Alexander Hamilton (who wrote Federalist 78), James Madison, and John Jay. Brutus has never been identified, but many believe it was Robert Yates, a delegate who left the Philadelphia convention in disgust.
While the Publius essays have become known as “The Federalist Papers,” and are revered as trenchant commentaries on the nature of democracy and the American Constitution, Brutus’s essays—sometimes called the Anti-Federalist Papers—have sunk into obscurity. But both were simply a series of advocacy articles—the op-eds of the time. And, on the subject of the judiciary, Hamilton and Madison turned out to be wrong, and Brutus right.
As Brutus predicted, the greatest source of the Court’s current sway is judicial review, the power to declare a law void if the justices see it as being in conflict with the Constitution—a right granted to it nowhere in the Constitution.
While there was a good deal of discussion in Philadelphia about Supreme Court justices participating in a “council of review,” there was no serious proposal to grant the courts the power to determine the constitutionality of laws passed by Congress. In the ratifying debates, it was again largely those delegates who had opposed the Constitution, such as George Mason of Virginia, and Maryland’s Luther Martin, who predicted that the Supreme Court would seize such a role.
That’s precisely what Chief Justice John Marshall did, pretty much out of whole cloth, in 1803 in Marbury v. Madison. Although Marbury is often the lead case in Constitutional Law textbooks because it established the precedent for judicial review, scholar Leonard Levy characterized Marshall’s decision as “rampaging activism,” and “one of the worst opinions ever delivered by the Supreme Court.” Still, Marbury passed seamlessly into American jurisprudence and has since become the cornerstone of judicial power.
The late Justice Antonin Scalia acknowledged that Constitution grants the Supreme Court no such power. “The Constitution of the United States nowhere says that the Supreme Court shall be the last word on what the Constitution means,” he said in a speech in 1996. “Or that the Supreme Court shall have the authority to disregard statutes enacted by the Congress of the United States on the ground that in its view they do not comport with the Constitution. It doesn’t say that anywhere. We made it up.”
But even Scalia, the supposed anti-activist, defended it nonetheless. “We made it up very sensibly, because what we said was, ‘Look, a Constitution is a law, it’s a sort of super-law.’ This is what Marbury v. Madison said. And what the law means is the job of the courts.’”
But is it? William Blackstone, the eighteenth-century English legal theorist and spiritual godfather to conservative judges across the English-speaking world, insisted that the courts should never have the power to overrule the legislature: “Judges are not at liberty to reject [an unreasonable law] for that were to set the judicial power above that of the legislature, which would be subversive to all government.” Thus, to Blackstone, separation of powers, the ultimate guarantor of liberty, demanded that the courts have no power to overturn legislative acts.
Judicial activism has infuriated those on each side of the political divide. Conservatives loathe Roe v. Wade for inventing a right of privacy not written into the Fourth Amendment, and liberals feel similarly about Citizens United, which grants free-speech protections to corporate spending on political campaigns. Both liberals and conservatives, then, would seem to have an interest in returning the judiciary to the more limited role envisioned for it by the nation’s founders.
The power exists to do this, because the Constitution’s drafters anticipated the need to revise and limit the court’s power. Article III, Section 2 reads (emphasis mine), “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Beginning in 1789, Congress passed a number of judiciary acts to more strictly define the structure and powers of the federal court system. With the Supreme Court becoming more partisan and powerful by the year, it may be time for another.
It is not as if we weren’t warned.