fbpx
Politics Foreign Affairs Culture Fellows Program

Don’t Blame the Courts

I’m looking forward to reading William J. Watkins’s Judicial Monarchs: Court Power and the Case for Restoring Popular Sovereignty in the United States, but I’m skeptical of its premise. Among conservatives and libertarians, still smarting from the sting of busing and Roe and other outrages from 40 years ago, it’s conventional wisdom that the federal […]

I’m looking forward to reading William J. Watkins’s Judicial Monarchs: Court Power and the Case for Restoring Popular Sovereignty in the United States, but I’m skeptical of its premise. Among conservatives and libertarians, still smarting from the sting of busing and Roe and other outrages from 40 years ago, it’s conventional wisdom that the federal courts are out of control and dangerous both to popular rule and liberty. And in fact, the courts are dangerous — but only for the same reasons that the other branches of the federal government are.

Courts do not violate popular sovereignty when they overturn legislative acts any more than the United States Senate violates popular sovereignty when it refuses to cooperate with the House in passing legislation, or any more than the president violates popular sovereignty when he vetoes a bill. This is not because courts are necessarily correct but because even when they are wrong, they are still second-order popular bodies — chosen by the people at one remove through the appointment of the executive and approval of the legislature. (Strictly speaking, the Electoral College makes the presidency itself a popular office only by proxy, but taking that into account hardly vitiates the point.) It’s not as if judges take office on the hereditary principle.

The U.S. Constitution does not, and is not meant to, reflect a single, momentary popular will. The different terms of office for House and Senate and the different basis for representation in each chamber and for the presidency already produce a modulation of the popular will. It’s thus quite common for the Senate majority to embody a different popular will from that of the House, or for the president to embody one different from Congress. The whole of the people, understood across time, is theoretically the same, and the only basis for holding office ultimately lies in the choice of the people, but the decision-making process of government is structured and diffracted. It’s true that British courts have never had the power to overturn an act of Parliament, but we most certainly do not have a Parliamentary system, whose excellence lies precisely in the expression of a momentary and complete mandate from the people.

It’s perhaps not surprising that demands to rein in the judiciary often take the form of demands for structural changes in government, including such progressive panaceas as direct elections and term limits. (Ironically, some of the same people who want to elect judges directly also want to repeal the direct election of senators.) Such structural fixes are an escape from confronting the raw fact that the people themselves are responsible for the character of every branch of our government. The American people as a whole and over time — as reflected over time and in aggregate in Congress and the White House, as well as in the federal courts — simply do not care about liberty as much as libertarians do and do not care as much about virtue as values conservatives do. If they did, reform would be unnecessary: elections would already produce legislators and executives, who together would produce judges, in harmony with the wishes of the right.

The impetus behind such radical reform movements on the right is the feeling that liberty or morality is slipping away; there is no time for gradual improvement, we must have a revolution, and that requires changing the constitutional machinery to allow more direct and fuller representation of the popular will. But once the machinery of revolution has been built, what guarantee does anyone have that wise hands will hold its levers? What kind of popularly elected judges might we have wound up with right after 9/11? What kind of legal system will we have if every change in popular mood translates into revision of the fundamental law? The question isn’t whether the people should have a say in all branches of government, but how immediate and monophonic their voice must be.

James Madison supplies a reason to think that making government more directly democratic in general will be a bad for liberty and “constitutional morality” alike. It’s true that Madison didn’t imagine a Supreme Court with powers anywhere near as wide as those of today’s. But he did envision a need for judicial restraint in government — first of all in the legislature itself. Garry Wills in his short biography of Madison calls attention to this passage in Federalist 10:

No man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay, with greater reason, a body of men are unfit to be both judges and parties, at the same time; yet, what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? and what are the different classes of legislators, but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side, and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction, must be expected to prevail.

As Wills argues, Madison conceived of government itself as an arbitrating authority — a judiciary writ large. Hence Madison’s desire at the Constitutional Convention to give the national legislature a veto over state legislation: he wanted the national legislature, composed in a such a way as to guarantee its judicial character, to arbitrate the factional disputes rife within the states. As the rest of Federalist 10 explains, Madison hoped that legislative districts of the right size — not so big as to prevent voters from knowing their representatives, but not so small as to allow short-sighted factions to capture power — would vouchsafe the impartial character of congressmen. (They would not be completely impartial, of course, but some element of higher judgment could be preserved.)

Madison may simply have been wrong; he certainly underestimated the scale that factions could assume. But it’s notable that our judiciary has become more meddlesome and factional — that is, it has lost its own judicial character — as our congressional districts have grown far beyond the size Madison considered proper, and as the presidency has assumed ever more comprehensive agenda-setting powers. The courts were the last branch of government to succumb to progressive ideology, though succumb they have.

What Madison’s analysis suggests is that those who propose more direct democracy as a remedy for court rulings that infuriate them may be making matters worse. Instead of attacking the root of the problem — factionalism in the legislature and the loss of the judicial temperament throughout our government — they encourage speedier and more complete expression of factionalism. In the short term and on particular issues that might favor the right, especially social conservatives, but in the long term and overall the effect will be to debase government: to shift it even further from the Madisonian ideal of an arbiter, what Oakeshott called a nomocratic system, toward the ideal of a winner-take-all struggle for power.

The basic problem is not a renegade judiciary at odds with the people and the other branches of government, but rather a judiciary that accurately reflects the compromised character of our government as a whole.

Advertisement

Comments

The American Conservative Memberships
Become a Member today for a growing stake in the conservative movement.
Join here!
Join here