The United States Senate’s Majority Leader, Mitch McConnell, is often caricatured as a turtle. Slow and benign, being attacked by him is as harmful as “being flogged with a warm lettuce”, as former Australian Prime Minister Paul Keating once said. Nonetheless, that disposition has not prevented the senator from becoming a conspicuous figure in US politics over the last few weeks. That is not attributable to any incisive policy idea or oratorical triumph, but simply because one old man did what old men often do, and died.
That old man was, of course, Justice Antonin Scalia. As is well known, Scalia’s death renders it distinctly possible that for the first time in decades, the majority of the Supreme Court will be political ‘liberals’ or even more crudely, ‘progressive’. Given its position as the final arbiter about what the US constitution prevents and requires, it is easy to see the importance of a seat on the court. Just five justices can determinatively rule on the legality of abortion or its prevention; they have the final say on what a “right to bear arms” is; their votes keep Guantanamo open; they ultimately decide whether people are killed by prison doctors as criminal punishment. If, like Mitch McConnell you correctly predict that a certain judge’s acquiring a seat on the court will undermine your ability to enact your policies of choice and will forever prevent you from achieving some political goals, would you not fight tooth and nail to prevent her confirmation? It seems likely that you would, or even that you should. So why treat Senator McConnell and his colleagues as such heretics? Would liberals not try to block a President Cruz nominee?
It seems plausible that they would. Yet Mitch McConnell and his Republican colleagues have attracted such anger and condemnation at the prospect of their blocking Judge Merrick Garland from being appointed to the court. McConnell’s detractors accuse him of being constitutionally improper, in blatantly violating the Senate’s supposedly unqualified obligation to consider and vote on a nominee. Judge Garland’s supporters do have a point. As many a Democrat has recently said, the requirement of the Senate’s consultation is not caveated with the words ‘except in a presidential election year’ or anything of the sort.
Despite the lack of a qualification in the Constitution’s text, McConnell’s hypocrisy and the gridlock the Republicans have created in the justice system, their is real force in their position. That force does not derive from Judge Garland’s character or the Democratic Party’s hypocrisy, but is, I suggest, the inevitable result of the Supreme Court’s illegitimacy. The Constitution means all things to all people: the text that once permitted slavery now requires same sex marriage. Its words are vague and its interpretations diverse. What does ‘equal protection’ mean? And what is ‘free speech’? That is a matter of judgment, opinion, and ultimately politics. So why let judges decide what they mean?
The claim that it is politically illegitimate for unelected judges to have the final, effectively unalterable say about what may happen in a country is not new. But unless the fundamental issue of the Court’s function and legitimacy is addressed, there will continue to be disputes – like the current one – whose resolution depends on irrelevant facts, like which President holds office when a Justice dies. As Republicans now recognise, it is wholly arbitrary to determine the ideological balance of the Supreme Court, and hence (to some extent) the country, in such a way. The unfairness of the way in which court’s ideological centre shifts is indeed mitigated by its affecting both parties at one time or another. But the unfairness remains – why put up with this?
Of course, the allegation that it is unjustifiable for the Supreme Court to strike down Congressional legislation needs substantiating. Perhaps the best way to start is to rebut the commonly held view of law and politics as distinct domains, where judges are responsible for the former and politicians for the latter. While a glance at the US Supreme Court helps dispel this misconception, many people still believe in its truth. Widely held though it is, it is difficult to maintain. Put as simply as possible, that is because laws, like the US Constitution, require interpretation. In expansive language they grant citizens rights – to free speech, to the equal protection of laws, against unreasonable search and seizure and so on. But they cannot explain what should happen in every situation life throws up. To take a contemporary example, one cannot say that the very definition of free speech is violated by ‘no platform’ policies. While some might think it does, that requires debate. And unsurprisingly, where one stands in that debate depends on one’s deep moral and political convictions. The same goes for the other constitutional rights. They are expressed in general, abstract words, saying little about what should happen, until they are interpreted by the judge.
Of course, legal practice is not just politics– judges grapple with precedent, complicated facts and nuanced doctrine. But it does involve political judgment, and where that judgment can override the judgment of a parliament or congress, there is a real doubt about the political legitimacy of the court’s role.
Although many academics have spent their careers arguing about this and related ideas, I will boldly try and briefly summarise the most compelling arguments.
There is a sizable tranche of opinion outside the US (though not exclusively) that regards the judicial review of legislation as undemocratic. True democracy requires that citizens have the final say on how they are to be governed, either through a parliament or a referendum. Since judges are unelected, they are unaccountable to the people and since in the US their word is final, democracy is undermined. The equation of democracy with majority rule that this theory assumes is how most people think of democracy. It is not, however, the only game in town.
“It means just what I choose it to mean!” – Humpty Dumpty
For those like the late American philosopher Ronald Dworkin, democracy doesn’t simply mean majority rule. Like justice or friendship, democracy is an ‘interpretive concept’ – it isn’t defined through logical deductions, but by reference to our other moral and political beliefs. We look for what is really good about this vague idea of democracy, and colour in that vague idea. Just like we would if asked what ‘friendship’ really meant. So, for Dworkin, democracy involves not just majority rule, but requires that collective decisions treat people with equal concern and equal respect. In this manner, the tyranny of the majority is prevented, where basic dignity and goods are denied to certain citizens. If a large group of people was so denied, Dworkin argued, there would be no self-government in any ‘legitimate sense’. As for the US Supreme Court, Dworkin was a strong advocate of the Court’s power to set aside Congressional Acts. He firmly believed that purely majoritarian procedures consign certain classes of people to the periphery of society. There, they become detached from politics, unable to meaningfully participate in political life. So, to prevent that exclusion, the best option is a strong, rights-focused judiciary.
But the fundamental question remains. Is the US Supreme Court illegitimate because undemocratic? Before I try to give a good answer, I will give a bad one.
‘How to read’, according to Justice Scalia
For a bad answer, we need look no further than the apparently distinguished career of Justice Scalia. For all his controversial decisions, Scalia’s main legacy lies elsewhere. And that is his so-called ‘originalist’ reading of the Constitution. According to Scalia, Constitutional rights mean just what the writers of the Constitution thought they meant. Whether gun restrictions violate the second amendment or whether affirmative action is lawful depend on what answer the Constitution’s ‘framers’ would have given. Beside the framers’ intentions being impossible to ascertain, Scalia’s originalism freezes the Constitution’s meaning at some point in the late 18th century. As one of Marco Rubio’s aids told him to say, ‘the Constitution is not a living breathing document. It is dead’. Changing perceptions, social attitudes and beliefs are irrelevant. Constitutional rights are what those old white men thought, all those centuries ago.
It is here that originalists declare a triumph. The Constitution means one thing and one thing alone. No activist judge can ‘read in’ qualifications, nor impose her personal agenda onto the Congress of the people. Democracy is saved, for the Constitution never enlarges. Through Congress, the people still have their voice, just within certain bounds. Judges tell us what the bounds are, not what they should be.
But this neat little theory is reactionary and wrong. It is reactionary because the country’s governing document is read through the eyes of someone likely born before 1750. In such a world, African Americans are sub-human, women are little more than chattels and less than a century before, some women were executed for being witches. Such is the perspective Scalia adopted to determine the meaning of the US Constitution.
More importantly though, it is not clear that originalists act as the framers would have wanted. For they did not compile lists of acceptable punishments, charts of permissible laws and tables of inviolable freedoms. They spoke purely in the abstract. Just as we recognise today, the framers knew people would disagree about what ‘free speech’ means, for example. Nonetheless, they used such abstract words to embody the Constitution’s rights. Ironically, then, originalism’s keen pursuit of their intention even fails at its fundamental pursuit.
But even if that’s wrong, why should we be originalists? Why should men long dead dictate how we read? When we pose this question, originalism begins to crumble. After all, if the rules of a group were written decades ago, nothing about the nature of ‘group rules’ means its members must look to what that ancient rule-maker intended. But if not because of its very nature, should the Constitution be read from the framers’ perspective? Yes, say the originalists, for otherwise ‘activist’ judges use those vague words to push their own agenda.
But alas, that is too clever by half. For if ambiguity is the great Trojan Horse which hides judges’ own agendas, what about the ambiguity of the framers’ intentions?
A rabbit or a duck?
As vague as love and obscure as a chameleon, the framers’ intention is mistress to the disingenuous. All things to all people, it is the blankest of canvasses. In its malleability lies its malice, where reactionary judges can ‘find’ an intention to bolster their views, already reached.
How then can we save judges from becoming politicians on the bench? In reality, we can’t, for interpreting any document is controversial. Where the governance of the United States is at stake and only vague words are in play, disagreement is inevitable.
So should we rest easy that just five of nine justices can settle disagreements about what the Constitution means? Some say ‘of course’, and point to Brown v Board of Education where racial segregation was prohibited, Roe v Wade where abortion was sanctioned and Obergefell v Hodges where same sex marriage was allowed. Such cases are the gospels in the progressive’s bible of rights; bastions of civility rising above a toxic political haze. But those victories have come at a price, and a heavy price it is. Dred Scott, Citizens United, Bush v Gore, to name a few. Slavery, political oligarchy and George W. Bush are quite a price.
Yet regardless whether one is generally content with particular Supreme Court decisions, the Court’s legitimacy as the ultimate judge of what elected government can do remains doubtful. While they are intelligent, analytical and (usually) principled, there is little evidence suggesting that a judge’s political judgment is any better than anyone else’s.
So maligned as he is, maybe Mitch McConnell has a point after all.