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Our Misunderstood Judiciary

Everyone’s Mad at the Judicial Branch — And They Always Have Been.

November 2023

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There’s a dark cloud hanging over the Supreme Court.

Americans increasingly feel like they just can’t trust it.

One scholar has said its immense powers make it “a deviant institution in American democracy.”

One senator has said that the court so often uses its power in favor of the “wealthy and powerful few” that it should be regarded as a “judicial oligarchy.”

In fact, one of America’s most celebrated statesmen has even said that the judiciary is undermining the very fabric of the country.

You could say that, when it comes to the power of the Supreme Court, we’re living in unprecedented times.

Except … you’d be wrong.

Because that scholar … was criticizing the court’s power in 1962.i

And that senator … was calling it an oligarchy in 1917.ii

And that statesman … was warning about the court’s divisiveness in 1820.iii

It was Thomas Jefferson, by the way.

[OPENING SEQUENCE]

The Supreme Court: regal, majestic, and, according to the polls … kind of a pain in our ass.

In 2022 and 2023, only 40 percent of Americans said they approved of the Court — a record low.iv And, despite the fact that the Justices are supposed to be above the fray, 50 percent of respondents tell pollsters they think of them as “just like any other politicians.” v

All in all, there’s a feeling that, these days, the Supreme Court is uniquely out of control. But here’s the thing: There’s actually nothing unique about it.

Yes, in the last few years many Americans have been outraged by the Court’s rulings on abortion or affirmative action. But turn back the clock a decade or so and a mostly different set of Americans were outraged by its rulings on gay marriage or Obamacare. Farther than that? Well, in pretty much every era of American history the Supreme Court has been at the center of controversy — on pretty much everything: the death penalty, school prayer, civil rights, labor law, slavery, steamship operations in New York.

Look, their idea of “controversy” was a little different in the 1820s, ok?

Bottom line: At virtually every point in the country’s history you could find people saying that the Supreme Court wasn’t doing its job. Which raises an important question: What’s its job?

In The Federalist Papers — you can think of that as the Constitution’s commentary track — Alexander Hamilton put it pretty simply: The Supreme Court’s role is to interpret the constitution and the laws passed by Congress — and to determine when laws passed by Congress violate the Constitution. vi

And despite how much the country has changed in the centuries since Hamilton … there’s still pretty broad agreement on that point.

Consider: This is Antonin Scalia, a beloved conservative justice appointed by Ronald Reagan. And this is Stephen Breyer, a beloved liberal justice appointed by Bill Clinton. These men spent their careers on the Supreme Court disagreeing on lots of issues. But when it came to the role of the court? Well, roll the tape.

[Scalia: “We’re supposed to just go down the middle and interpret the text the way we think it ought to be interpreted”]

And then, less than a minute later:

[Breyer: “We both know that what we’re trying to do is apply the law and interpret the law. No one at that level disagrees.”]

On the one hand, that’s basic civics. But on the other hand, it’s pretty profound.

When two presidential candidates from different parties talk about how they think that job should be done they usually end up screaming at each other. When two congressional candidates from different parties talk about how they think that job should be done they usually end up screaming at each other. But when two Supreme Court justices from two different parties talk about how they think the job should be done they end up … saying “samesies”?

There’s a bigger truth buried in there: As much as the media highlights their disputes, Supreme Court justices actually agree more than you might think. In its supposedly polarized 2021-2022 session, nearly 1/3 of the Supreme Court’s cases had unanimous 9-0 rulings. In the decade prior, the average was 43 percent unanimity.vii

So, what’s going on here? Well, if the justices all come to the same conclusion a lot of the time even though they have different legal philosophies … it suggests that all this feel-good language about how they’re simply supposed to interpret the law … is the truth. And it also suggests that the controversial cases where the court is the most closely divided are controversial precisely because they’re the ones where it’s the hardest to figure out what the law really requires.

After all, most cases only get to the Supreme Court because lower courts have disagreed on the right way to decide them.

And that’s the real reason that the Supreme Court has always been — and probably always will be — controversial: because it’s literally their job to answer the hardest questions in American law.

Which doesn’t mean, by the way, that the Supreme Court gets every case right or that it’s wrong to get upset at the outcome of a case. What it does mean, however, is that we should take the time to know exactly who to be upset with.

So, here’s a quick guide.

Are you mad because you’ve read the Court’s opinion and think it’s misinterpreting the law or the Constitution? Congratulations, your beef is indeed with the justices. Let ‘er rip.

Are you mad because of what the law the Court was interpreting said? Well, that one you gotta take up with Congress. Writing and repealing laws is their job.

Are you mad because of what the constitution itself says? Well, you’re in luck, because the Founding Fathers gave us a mechanism to amend the constitution. Though fair warning: It’s hard to do and Americans rarely care to try unless it involves alcohol.

It’s worth remembering what makes the Supreme Court so important. In a country as polarized as ours, it’s the branch whose responsibility is to put aside politics and make sure that partisans from both sides play by the rules.

Is it perfect? No. But a world without it would probably be much worse.

I mean, imagine the chaos for New York City steamships.

Sources

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