In Federalist Paper Number 78, Alexander Hamilton famously contended that the judiciary would be “the least dangerous” of the three branches of US government, because “it will be least in a capacity to annoy or injure” the political rights provided by the Constitution. The executive branch “holds the sword of the community”, he explained. And the legislative “prescribe the rules” regulating the rights and duties of citizens. The judiciary, on the other hand, “has no influence over … the sword”. It “can take no active resolution” because it has neither “force nor will, but merely judgement”. This is because the “proper and peculiar province” of the judiciary is “the interpretation of the laws”.
This benign and optimistic view of the judicial branch has been belied by the past several decades of US Supreme Court jurisprudence, in which policy-making courts have not merely interpreted the laws, but rather usurped the roles of both the Federal and States’ legislative and executive branches. Rather than to interpret laws or the Constitution, various compositions of the Supreme Court have created policy, sometimes from thin air. This has made the judicial the most dangerous of the three branches, because there often is no recourse beyond its judgements. For the Supreme Court, especially, the danger lies not merely in particular decisions, but rather in its near immunity from correction, other than by itself.
The Court’s just-completed term suggests signs of returning to Hamilton’s prediction of the “proper and peculiar province” of the judicial branch. Of course, when a court reverses or overrules the various excesses of prior renegade courts, it looks activist itself. And the left’s overwrought criticisms of this Court are not informed by what the US Constitution requires, but rather by the political or policy outcomes that the critics prefer. Two cases with important social implications illustrate the lessening of the Supreme Court’s danger to the rule of law in the US. But one of them also exposes a defect in the Constitution itself.
Dobbs v Jackson Women’s Health overruled Roe v Wade, the 1973 decision that usurped the ability of the states to make abortion law and regulations. Dobbs’ reversal of Roe is perhaps the quintessential example of Alexander Hamilton’s admonition. The Roe Court did not interpret the Constitution, but rather ham-handedly imposed policy by an example of “raw judicial power”, as then Justice Byron White famously dissented. Roe imposed a rigid policy on an American public that was in the process of determining what abortion policies should prevail, state by state. In other words, the Roe Court picked a winner rather than umpiring the game.
This was a most dangerous act not merely because it prevented American citizens from protecting unborn life, but also because the Roe Court wielded the “sword of the community” and “prescribe[d] the rules” in such a way that it was immune from democratic correction. By inventing a “right” out of emanations from penumbras (to echo the similarly lawless 1965 case, Griswold v Connecticut), the Court frustrated the legislative and executive prerogatives of Federal and state governments. “Far from bringing about a national settlement of the abortion issue”, Dobbs explained, Roe “enflamed debate and deepened division”. Roe fomented a half-century of acrimony (and violence) by committing an error that could be corrected only by the Court itself. After 49 years, the Dobbs Court did correct Roe, lessening the Court’s danger to democratic rule.
In New York State Rifle & Pistol Association v Bruen, the Court again refused to pick a winner by imposing a policy outcome. But the case also exposes the difficulty of being governed by a Constitutional provision, formed in the crucible of revolution, more than 200 years after the issue it addressed has long since passed. In Bruen, the Court concluded that the Second Amendment’s right to “keep and bear arms” – without any qualification in the Amendment itself – confers a broad right to carry a handgun outside one’s home. Partly because it was handed down within weeks of a spate of horrible mass shootings, the decision was derided, especially by the political left. How could the Court be so cruel, is the usual formula, when gun violence in the US is a scandal among advanced democracies? Of course, this complaint presumes that the Court should make policy rather than interpret the law.
Just as the same political demographic criticised Roe with no concern about what the Constitution doesn’t say about abortion, so did they criticise Bruen without concern about what the Constitution does say about the “right” to bear arms. In other words, they criticise the Court for not being more dangerous to the rule of law and democratic processes. I am not happy with Bruen, not because of the Court’s judgement, but rather because the Second Amendment is a dangerous anachronism that should be repealed.
But it is not the role of the Supreme Court to impose a policy that contradicts the Constitutional provision, or to impose a policy outcome that it prefers. By refusing to do either in Dobbs and Bruen, the current Supreme Court has lessened its danger to the American body politic.
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