This week, Slate writer Mark Joseph Stern advanced an alarming proposal with apparent seriousness: the Supreme Court should be abolished, or, at the very least, ignored. In a review of author Ian Millhiser’s recent book, Injustices: The Supreme Court's History of Comforting the Comfortable and Afflicting the Afflicted, Stern argues that the Supreme Court has “consistently and unapologetically used its authority to thwart progress and perpetuate inequality.” The obvious (to Stern) solution: “The court has got to go.” The day it does, Stern confidently predicts, will be “a happy day for American democracy.”
Stern may have been serious, but his case against the Court should not be taken seriously. To borrow an image, allowing the political branches to act as judges of the limits of their own power is like allowing a sheep and two wolves to vote on the dinner menu. Those who do not want their rights left at the mercy of heedless executives, entrenched special interests, and overbearing majorities should reject Stern’s immodest and historically illiterate proposal.
Stern’s proposal to eliminate judicial review would allow individual rights to be trampled by majoritarian might in wide areas of life. It would allow government-enforced racial segregation. It would allow states to prohibit the use of contraceptives and make it illegal for a grandmother to live in the same home with her grandchildren. It would allow cities to single out and suppress unpopular religious practices. It would allow police officers to coerce confessions, schoolchildren to be forbidden from learning about evolution, peaceful political expression to be outlawed, and private sexual intimacy between homosexuals to be criminalized.
Lest you think this parade of horribles would never materialize if, as Stern recommends, “legislatures in red and blue states alike... start ignoring [the Court’s] proclamations,” just read the links — these are actual cases involving actual abuses of government power. Each of the above abuses has occurred in our country, and each has been stopped by the Supreme Court.
To be sure, the Court is hardly without sin. But while Stern chastises the Court for excessive activity, some of its most egregious sins have been sins of passivity — for example, allowing the state of Louisiana to exclude Homer Plessy from a “whites only" railroad car; allowing the Roosevelt Administration to detain Fred Korematsu in a concentration camp during World War II because he had Japanese ancestors; allowing the state of Virginia to sterilize Carrie Buck for eugenic purposes because she was “promiscuous” and “enfeebled” (though she was neither); and allowing the New London Development Corporation, using the government’s power of eminent domain, to bulldoze an entire working-class neighborhood for so-called “economic development.” These decisions represent an abdication of the courts’ responsibility to say what the law is and hold the political branches accountable to the terms of the Constitution.
Indeed, the proposition that the Court’s activity — often mistakenly or cynically disparaged as “activism” — is a more pressing problem than its passivity should strain the credulity of the credulous. Stern leaves one with the impression that the Court has been striking down vast swaths of perfectly legitimate, public-spirited legislation. But the reality is very different.
Between 1954 and 2002, Congress passed 15,817 laws, and the Supreme Court struck down just 103 — two-thirds of one percent. Of the more than 1 million state laws passed during the same time period, the Court struck down 452; less than one twentieth of one percent. Does anyone really think that politicians are hitting the constitutional strike zone 99.9% of the time? Moreover, contrary to the standard progressive shibboleth, the Roberts court has been the least active in striking down laws in the Court’s entire history. There is abundant reason to believe that we have an epidemic of judicial abdication, not excessive “activism,” on our hands.
The solution to this problem is not to abolish or ignore the Court. Rather, it is insisting upon consistent judicial engagement. Judicial engagement consists in an impartial, evidence-driven inquiry into the constitutionality of the government’s actions. It ensures that Americans receive the honest, reasoned, factual explanation that they are entitled to when the government seeks to restrict their constitutionally protected liberty.
Mark Stern is (ironically, perhaps) free to advocate a point of view that, if accepted, would turn back the clock to the days when rights were regarded as privileges to be given or taken away at the whim of the politically powerful. But Americans concerned about individual rights should reject his vision. It is not, in fact, progressive. It is reactionary.