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Monday, July 9, 2018

Why the Supreme Court Shouldn’t Possess the Power to Bestow Individual Rights

Anyone who thinks individual rights come from nine elite lawyers is about the furthest thing from being egalitarian.

The national anxiety over Justice Anthony Kennedy’s retirement from the Supreme Court of the United States seems disproportionate to size of the footnote he will occupy in history.

Why does it matter that one federal judge will retire?

An Elite Judicial Body

Robert Jackson was Solicitor General of the United States, Chief Prosecutor at the Nuremburg trials, and Associate Justice of the Supreme Court. For his education, Jackson spent about a year at Albany Law School, reading the law, and passing the bar examination.

His story is an inconvenient truth in the era of big student loan debt. As debt soars, income stagnates, housing skyrockets, and 30-year olds bunk with roommates (or parents), a generation now awakens to a looming higher education crisis. Many are losing faith, looking to alternatives, or simply opting out.

Then again, when the Supreme Court issues its opinions each June, and 5 billion social media users morph into Robert Jackson, I am reminded that law is indeed a trained profession.

I know the government schools told us we are each entitled to our opinion. But there is a simple reason the Supreme Court does not poll the American public before stating its opinions. That is because it is, by definition, elite. It is nine lawyers rendering legal judgments about legal arguments, raised to them by other lawyers (all of whom studied law, and passed a bar examination).  

The Court is also not merely nine typical practitioners of an elite profession. To be on the Court you need to be exceptional.

A Robert Jackson, for example.

The Egalitarian Myth

Yet, it happens every year. Social media erupts with opinion every June—opinions for, or against the Court’s decisions. When Obergefell v. Hodges recognized a constitutional right to same-sex marriage in 2015, the White House lit up with rainbow colors. Major corporations responded by altering their logos to include rainbow colors.

So, is the legitimacy of a Supreme Court decision now measured against its popularity? Must we wait for the Court to catch up to popular opinion, or must popular opinion catch up to the Court?

In 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Division, Justice Kennedy wrote for the majority: “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights.”

It may be that “society” has come to these conclusions. But is it not bizarre that nine elite lawyers, sitting on the most elite court in the world, seem to speak on behalf of society?

Is that how self-government works?

Because no matter how egalitarian the Court’s decision is, anyone who thinks individual rights come from nine elite lawyers is about the furthest thing from being egalitarian. That person surely recognizes that popular approval is irrelevant to some legal questions.

So which questions? Is there any limit to what the Supreme Court gets to decide?

If only, there was some written framework. Like a sacred scroll or some tealeaves we could read.

Plain English

Surely, we do not believe that non-lawyers are incapable of understanding their own civil rights. To the contrary, that is exactly the point of a Constitution, written in plain English.

The question is not whether the Supreme Court ought to conform its decisions to popular will; it is whether the Court has stepped outside its authority altogether.

We cannot expect every person to become trained lawyers, or to read every Supreme Court opinion before opening a bakery, falling in love, or getting pregnant. Yet in 2018, the Court spilled gallons of inks telling more than a quarter-billion people about the existential meaning of cake.


Not a Legislative Body

Some might suggest the Supreme Court has been stretching the limits of its authority since Marbury v Madison, when the Court ruled that it possess the unique authority to review the constitutionality of executive and legislative acts. 

Although 1965’s Griswold v Connecticut stands out as a major turning point, after which the Court’s reasoning would be bent toward socially desirable outcomes. In Griswold, the Court struck down a Connecticut law banning the sale of birth control, holding that this infringed on the marital right to privacy.

Where was this marital right to privacy found?

In “penumbras, formed by emanations” of course.  

As Justice Black wrote in Griswold’s dissent, “ I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”

Majoritarianism Is Not the Only Alternative

You will often hear people balk at the notion of “nine unelected judges.” But whether they were elected to serve in an elite judicial body is not really the point. The Supreme Court is supposed to be elite, and their elitism is not the problem. The problem is, nine lawyers, no matter how exceptional, should not possess the power to make up individual rights.

Besides, we also have state legislatures, a Congress, city councils, and local government. We have a Constitutional amendment process.

Does that mean fifty sets of laws, in fifty states? Or different laws in every county, and every city? That is how self-government works, and it is not uncommon in the grand scheme of history for local customary law to be diverse.

I want to be clear: individual rights cannot be subject to majority rule, either. There must be a law higher than the whims of the mob—even if the mob is your city council, rather than the U.S. Congress. The Constitution is a law, albeit manmade, rooted in Natural Law and inalienable rights. Defining Natural Law is a tall order in a pluralistic society of thousands of competing beliefs and interests. Although on certain issues, I would rather take my chances with a city council, instead of trying to answer all social questions for 320 million people.     

The Constitution remains at least a good starting point, and a plausible alternative to majoritarianism or oligarchy. And it contemplates a decentralized, federal system of government, whereby the people of the states will govern themselves.  

Credibility Problems and Resistance

Kennedy’s retirement would matter very little if the Court had not arrogated to itself the power to review the Constitution, along with the power to invent new rights. Nobody would care about a so-called swing-vote if the decisions did not intrude on the most intimate, and most debated social questions. We would not sit with baited breath every June, waiting to see what goodies the Court is going to give (or takeaway).  

Ironically, by augmenting its powers, the Court devalued its credibility as an elite institution. Many view its decisions for what they often are: ideologically driven legislation. When a narrow majority uses restraint, the majority is criticized for not forcing a socially desired policy. Those who agree with the decision unquestioningly act is if the Court as upholding the will of the people.

Maybe it is the will of the people. But how long before “the people” ask: “Why aren’t we just voting on all these things? Who elected these nine lawyers to tell us who we can sell our baked goods to?” 

That line of questioning is the germ of secession, nullification, and resistance. We now see the right and the left embracing these strategies at the local level: toward immigration laws, marijuana laws, abortion laws, and an unending list of social issues.

Kennedy’s replacement is not going to make any of this go away.

  • Thomas Smith is an alumnus of Berkeley and Pepperdine Law, and a corporate attorney.