WSJ September 15, 2018

The Supreme Court Was Never Meant to Be Political

Since the 1950s, the justices have become ever more powerful and partisan. It’s time to stop expecting them to be the ultimate arbiters of domestic law.

By Joseph J. Ellis | 1143 words

It is now received wisdom that perhaps the single most important power of the American president is the nomination of justices to the Supreme Court. In today’s debate over the nomination of Judge Brett Kavanaugh, both sides agree that the future direction of the American republic is at stake, because the next appointment will determine the political tilt of a judicial body that has become the ultimate arbiter of the laws under which we live.

Most members of America’s founding generation would have regarded this situation as strange. If you read the debates among the delegates at the Constitutional Convention of 1787, and then read their prescriptions for judicial power in Article III of the Constitution, it becomes clear that the last thing the 39 signers of the document wanted was for the Supreme Court to become supreme. They expected that status to belong to Congress, and a majority thought that each branch of government should decide the scope of its own authority. The last location the framers of the Constitution wished to place sovereignty in the government they created was the Supreme Court, the most unrepresentative body and the one most removed from the wellspring of ultimate authority in “the People.”

For most of American history, the Supreme Court only infrequently stepped forward to redefine the political landscape in decisive fashion. The two most conspicuous occasions both involved the great American tragedy of race.

In Dred Scott v. Sandford (1857), the Court attempted to provide a legal resolution of the politically unsolvable problem of slavery. The majority opinion argued that the framers of the Constitution clearly regarded slaves as property, and therefore the Missouri Compromise (1819) and the Compromise of 1850 were unconstitutional. This meant that the federal government had no authority to limit the expansion of slavery in the western territories, in effect endorsing its anomalous persistence within the American republic. The ruling in Dred Scott deepened the sectional divide that led to the Civil War, and legal scholars and historians have long considered it one of the worst Supreme Court decisions in American history.

Almost a century later, the Supreme Court in Brown v. Board of Education (1954) landed squarely on the other side of the racial divide, striking down the legal doctrine of “separate but equal” that the justices had upheld as a justification for racial segregation in Plessy v. Ferguson (1896). The Court thus placed segregation on the permanent defensive at a time when a clear majority of the white citizenry in the former Confederacy was fiercely opposed to racial integration. If only in retrospect, the Brown decision signaled a crucial shift in the role of the Court, the first step on its way to becoming the dominant branch of the federal government in deciding the direction of domestic policy.

The judicial revolution launched by Brown proceeded in a liberal direction for nearly 30 years. The liberal wave was based on the belief that the justices were interpreting a “living Constitution” that obliged them to adjust its meaning to evolving standards of justice. The liberal agenda expanded the rights of criminal suspects, broadened the definition of free speech and, in Griswold v. Connecticut (1965), discovered a new right to privacy. Most controversially, building on that principle, the Court affirmed a woman’s right to abortion during the first trimester in Roe v. Wade (1973).

Then came the conservative wave. It began in July 1985, with an address by Attorney General Edwin Meese endorsing the judicial theory of “originalism,” a conservative doctrine with radical implications. Originalists claimed that contemporary standards of justice cannot take precedence over the values that prevailed when the Constitution was written and ratified. All those liberal precedents were suddenly vulnerable because they violated the “original meaning” of the Constitution. One of the seductive appeals of the originalist persuasion was the claim to derive its judicial insights from the founders, who allegedly enjoyed privileged access to eternal truths.

The awkward fact about the landmark decisions of the conservative court was that the eternal truths consistently aligned with the Republican agenda, just as the decisions of the liberal court had aligned with the Democratic agenda. In Bush v. Gore (2001), the Court’s conservative majority read the tea leaves of a baffling Florida statue to award the presidency to George W. Bush. In District of Columbia v. Heller (2008), the Court overturned two centuries of legal precedents to find that the Second Amendment sanctioned an almost unlimited right to own a gun. Then, in Citizens United v. Federal Election Commission (2010), the Court overturned a century of precedents to find that federal restrictions on corporate contributions to “electioneering communication” were unconstitutional violations of the First Amendment right to free speech.

In sum, since Brown we have watched the Supreme Court bend the law in two different directions, landing on one side or the other of the political spectrum based on which political party could command a 5-4 majority. The only difference between the two sides is that liberals are transparent about their political agenda, while conservatives, using originalism to make problematic claims of detachment, are not. Small wonder that recent confirmation hearings of the Senate Judiciary Committee have become television spectacles in which nominees appear as magicians who have no idea how the rabbit got into the hat.

What we are really witnessing, however, in the Kavanaugh hearings is the scene in “The Wizard of Oz” when Dorothy draws back the curtain. The nomination and appointment process has become so transparently partisan and thoroughly politicized that no exalted image of the Supreme Court as a uniquely American version of the Oracle at Delphi is sustainable any longer.

Perhaps we can take comfort in realizing that we are putting away childish things. For just as it was always delusional to believe that tongues of divine fire appeared over the heads of those 55 men gathered in Philadelphia so long ago, it was equally fanciful to believe that all controversial questions could be resolved by a tribunal of elders endowed with a preternatural affinity for the truth.

And as we understandably shed a few tears over the death of our Delphic delusion, we might gain some semblance of solace by realizing—originalists take note—that we are recovering the original intent of the founders. None of them claimed to be oracles, and they thought that anyone claiming such status was a charlatan or demagogue.

Where does that leave us? As citizens, we need to lower our expectations and realize that the Supreme Court cannot perform the impossible and otherworldly mission it has been assigned in our time. All justices should take a vow of humility, content themselves with incremental reforms of the law except on rare occasions, and thereby place the burden on Congress to perform its constitutional task of shaping the direction of domestic policy, as the founders intended.

Mr. Ellis is the author of many books on the founding era, including “American Dialogue: The Founders and Us,” which will be published by Knopf on Oct. 16.