The Least Dangerous Branch? A Politically Incorrect Guide To The Supreme Court
By David P. Deavel – June 11, 2023
It’s June and we are about to find out what the Supreme Court has decided on some very important cases. Decisions have already been handed down, including this past week’s Merrill v. Milligan, which had to do with whether the Alabama Legislature could legitimately draw voting districts in such a way that only one of the seven districts was filled with a majority of black voters. A Federal Court had struck down the map as violating the Voting Rights Act. Though it was widely feared by the left that the Roberts Court would declare that the law cannot be used to demand specific racial compositions of districts, Justices Roberts and Kavanaugh both sided with the liberals, though on somewhat narrow grounds.
What ought we to make of this? John Yoo and Robert J. Delahunty’s The Politically Incorrect Guide to the Supreme Court, available later this month, does not treat the particular case of Merrill, but it does explain the past and present of the Supreme Court’s jurisprudence with an eye toward the future that will be enlightening to all those who are reading the news this month and wondering what to make of these decisions.
This volume, the latest in Regnery Press’s series of Politically Incorrect Guides, follows the pattern of previous guides in providing something that is popularly accessible but not a guide for “dummies.” Rather than simply explain basic facts about a topic, these guides, known as “PIGs,” lay out controversial topics from a conservative point of view with a great deal of scholarly rigor but not sleep-inducing scholarly jargon or prose. The pages include sidebars decorated with cartoon pigs that include pertinent and amusing quotations not in the main text, reading suggestions prefaced by “A Book You’re Not Supposed to Read,” and sometimes very pithy restatements of what is at stake in a topic being discussed.
Yoo and Delahunty’s guide to our highest court begins with Alexander Hamilton’s famous prediction that the Supreme Court “will always be the least dangerous” branch of government. They don’t think so. The reason for that doubt has to do particularly with the modern history of the Court and the Progressive theory about a “living Constitution” whose meaning is not found in its text but in the minds of jurists who want to adapt it to their own notions of what we need now. Throughout this book, they argue that what the American Founders intended and what alone prevents a tyranny of black-robed lawyers is an approach to Constitutional law grounded both in the original public meaning of the texts and the understanding of natural law and natural rights that lies behind them. “Originalism,” they write in the first chapter, “is the only legitimate way for a Supreme Court justice to approach the job.”
Yet even with an originalist bent, not everything is easy. Their history of the Supreme Court includes a defense of John Marshall’s famed doctrine of judicial supremacy in Marbury v. Madison (1803) on the basis of a structural reading of the Constitution, though they show the reasons why there have always been skeptics (particularly on the right) about this doctrine. They are perhaps less ready to defend the eminent justice in the matter of Gibbons v. Ogden (1825), which established a broader reading of the Interstate Commerce Clause, found in Article I, Section 8 of the Constitution. Marshall’s decision to interpret this as a power to “regulate” commerce, including goods, services, navigation, and even “transportation of people,” they observe, “gave Congress almost complete discretion over that intercourse.” It became “the clause that ate the Constitution.”
If Justice Marshall was a great man who made mistakes, there were many lesser figures who made bigger ones. While it is chic on the left to say conservatives don’t want to discuss our nation’s difficult racial history, Yoo and Delahunty prove this wrong over and over. Their explanation of Dred Scott v. Sandford, what they call “the worst decision ever,” details the actual “white supremacy” that guided Chief Justice Roger Taney’s thinking as well as his historical inaccuracies and illogical in the decision that struck down part of the Missouri Compromise and ruled that black Americans could never be counted as citizens but only property.
Other periods of the Supreme Court’s history have brought other damage. They cover in a good deal of depth the difficulties of the Court’s creation of “rights” since the 1960s as well as the long struggle to make sure that the enumerated rights in the Constitution are applied against states and localities. With regard to those “rights,” they treat the Court’s abortion jurisprudence since 1973. They argue that the 2022 Dobbs v. Jackson Women’s Health, which overruled Roe v. Wade and its invention of a right to abortion, is likely to have both positive effects on some aspects of our legal culture and negative effects on our politics and polarization. On the positive side, it seems to have struck a blow against the tendency to invent rights under the guise of “substantive due process.” With regard to those actual enumerated rights, they spend three chapters examining the recent (and cheering) Supreme Court decisions on the Second Amendment that indicate that the right to bear arms does not mean merely that the National Guard can be armed.
If the decisions of the 1960s and 1970s had problems, the deepest difficulties we face actually started earlier. While the Court of the 1930s stoutly resisted the unconstitutional aspects of Franklin Roosevelt’s New Deal, the president’s famed attempt to pack the Supreme Court with additional justices nevertheless brought about a “change of course” in decisions. “In the end,” Yoo and Delahunty write, “the Court enabled the creation of the Administrative State under which we now live.”
In the penultimate section of the book, the authors look at the specific problems of that Administrative State, which has seemingly swallowed the federal government as the Interstate Commerce Clause swallowed the Constitution. They provide a précis of the history of Woodrow Wilson’s and the Progressives’ understanding that we needed a new Constitution, one that would do away with the separation of powers. He wanted to sideline Congress and make the President less a chief executive and more a political leader who can simply leave the task of administration to the experts. As the authors grimly observe, “Wilson’s conceptions of the presidency, of Congress, and of the Administrative State have prevailed, and provide a true account of the government we live under today.” The Supreme Court’s laxity in allowing Congress’s and the President’s authority to be handed over to the unelected bureaucrats of the swamp is a major problem. We aren’t really operating within the constitutional framework in many ways these days.
It seems a dire picture to paint. Is there any hope? One depressing aspect of the historical accounts of the last fifty years is how often Republican-appointed justices “grow” in office—meaning become more compliant to their liberal colleagues’ ideas. They detail how often even truly conservative justices bent to the demands of the abortion lobby or the administrative state. Yoo and Delahunty perhaps too quickly judge that that era may be coming to an end.
But in their chapter, “Is It Too Late?,” Yoo and Delahunty see some hope in the 2022 decision West Virginia v. EPA and the concurring opinion of Justice Neil Gorsuch. While Justice Roberts’ opinion for the majority seemed to allow Congress to shuffle off their legislative power in toto to an agency as long as they’re clear about the matter, Justice Gorsuch indicated that his view is that “any statute, including the Clean Air Act, will be constitutionally problematic if it purports to grant significant discretion to any agency, and any major agency policy reliant on that discretion will be under a constitutional cloud.”
The final chapter is also cheering. In addition to the possibility of taking on the Administrative State, Yoo and Delahunty see possibilities for the Roberts Court to revive, among other things, federalism, break the grip of affirmative action in universities, and strengthen religious freedom. They spend a good bit of time showing how several of the justices are pushing the Court to be a bit more clear-eyed about their task. Justice Thomas, who must be acknowledged as the contemporary Court’s best justice and perhaps the hero of the book, has indicated his willingness to reconsider a great many bad decisions on the part of the Court without being intimidated by invocations of stare decisis, the doctrine that precedents ought to be respected. Surely they ought to be respected, but that doesn’t mean they’re always right.
For those who want to understand where we are and how we got to the place we’re in constitutionally speaking, The Politically Incorrect Guide to the Supreme Court gives an account from the side of the law that will be enlightening to many even as it is depressing as well. Yoo and Delahunty believe that a “restoration” is needed. They hope—and we ought to—that the Roberts Court is up to the task of beginning it. As the Marshal says at the beginning of each session of the Supreme Court, “God save the United States and this Honorable Court.”
David P. Deavel teaches at the University of St. Thomas in Houston, Texas, and serves as Senior Contributor at The Imaginative Conservative. His Solzhenitsyn and American Culture: The Russian Soul in the West, coedited with Jessica Hooten Wilson, will be released in paperback next month.