The death of Justice Ruth Bader Ginsburg has alarmed Democrats and delighted Republicans with the prospect that President Donald Trump will be able to appoint, and the Republican majority confirm, a conservative Republican justice to replace her on the Supreme Court between now and the inauguration of either Biden or Trump in January. For once, the hysterics are right: The stakes of the partisan balance of power on the Supreme Court are high. They are high because the Supreme Court of the United States is no longer a court, in any meaningful sense. It is now a legislature—a legislature that is vastly more powerful than the U.S. Congress and far less democratic.
There is a still a pretense that what the justices are doing is interpretation and application of law, not lawmaking. But if the Supreme Court were still a court, it would have very little to do, other than dealing with fairly arcane issues of statutory and regulatory interpretation. The power of judicial review, properly understood, allows the Supreme Court to strike down federal, state, and local laws and presidential actions that are plainly unconstitutional—but few laws or acts are plainly unconstitutional. That is because constitutional provisions and congressional statutes, although written in a dry, abstract way, are easily understood by any ordinary literate person.
Here’s an example—the First Amendment of the first 10 amendments that make up the Bill of Rights in the U.S. Constitution:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
“Inclusio unius est exclusio alterius” is fancy Latin for a commonsensical rule of legal interpretation: If lawmakers list specific items in a law, then the law is to be read as applying to those items only and not others. From this it follows that the First Amendment, in the part following the section on religion, allows Congress to pass laws regulating communications as it sees fit with four exceptions and only four exceptions: freedom of speech, freedom of the press, freedom of assembly and freedom of petition. If the drafters and ratifiers had wanted to include any other specific freedoms in the First Amendment, they could have done so.
Do you see anything about the freedom to dance in the nude in the First Amendment? Neither do I. But we’re not thinking like Supreme Court justices!
In California v. LaRue (1972), the court ruled on a preposterous claim that nude dancing is protected by the First Amendment. The court upheld the right of state and local government officials to regulate the sale of alcohol at bars with nude dancers, but Chief Justice Rehnquist, writing for the court, suggested that “at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression.”
Note the weaselly term “freedom of expression.” One of the ways that the unaccountable, life-tenured government functionaries of the Supreme Court grab power from federal, state, and local elected officials is by claiming that actual, literal constitutional provisions are gesturing at some greater abstraction. In this case, the value inferred from the text of the constitution is “freedom of expression,” a phrase that does not appear in the First Amendment, unlike the four specific freedoms that are actually listed in the amendment—the freedoms of speech, press, assembly, and petition.
Like all smart civil servants, Supreme Court justices know how to make busywork for themselves to justify their salaries and tenure. Having suggested in California v. LaRue that some kinds of strip shows are protected by a vague thing called “freedom of expression” which is found nowhere in the First Amendment, the justices of the Supreme Court returned repeatedly to the issue of nude dancing in Doran v. Salem Inn (1975), Schad v. Mount Ephraim (1981), Barnes v. Glen Theatre (1991), and City of Erie v. Pap’s A.M. (2000). The court’s obsession with strip clubs is puzzling, inasmuch as only about 1% of cases heard in federal court are deemed worthy of review by the Supreme Court in each session.
Having rewritten the First Amendment to protect some kinds of nude dancing (not necessarily “the customary ‘barroom’ type of nude dancing,” the court helpfully explains in Barnes), successive court majorities have announced ever more complex tests that state and local regulations of nude dancing must meet, to be legal under the U.S. Constitution. Needless to say, these “constitutional tests” have nothing at all to do with the federal constitution as written. The justices just make all of this stuff up and pretend to find it in the Constitution because they can get away with it.
At least they are having fun. In Barnes v. Glen Theatre, Justices Rehnquist, O’Connor, and Kennedy argued that the First Amendment allows local governments to require nude dancers to wear a G-string or pasty that “leaves ample capacity to convey the dancer’s erotic message.”
Judicial activism and lawmaking in the guise of judging are by no means limited to causes favored by the left. Back in 1976, in Buckley v. Valeo, the Supreme Court struck down limits on campaign spending in the Federal Election Campaign Act of 1971 as violations of … you guessed it … the First Amendment! A later court majority in Citizens United v. FEC (2010) also invoked the First Amendment to strike down limits on “independent” political spending by corporations, trade associations, nonprofits, and other groups.
Is campaign spending “speech” under the First Amendment? Why not? What about nude dancing? Hey, what the hell, let’s pretend that’s covered by the First Amendment, too. A trade association lobbyist in Washington, D.C., might need to relax at a strip club after a tiring day of reminding U.S. senators and representatives who pays for their campaigns.
These examples illustrate the two-step dance by which the de facto legislators who sit on the Supreme Court dishonestly rewrite constitutional provisions and statutes to promote what they individually consider to be socially desirable goals, while still posing as judges. Step one: Replace the actual language of the Constitution or statute with an elastic concept like “free expression.” Step two: Use the vague phrase as a license to make laws from the bench.
To be fair, I should note that a few of the famous Supreme Court decisions of the last century involved the Supreme Court doing what it was actually supposed to do—interpreting and applying existing laws. For example, Brown v. Board of Education of Topeka (1954) dealt with a number of school segregation cases. With Thurgood Marshall, later the first Black Supreme Court justice, serving as chief attorney for the plaintiffs, the court ruled that racially segregated schools deprived African Americans “of the equal protection of the laws guaranteed by the 14th Amendment.”
Here is Section 1 of the 14th Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The relevant portion of the 14th Amendment, which we have already read in connection with nude dancing, reads that no state government will “deny to any person within its jurisdiction the equal protection of the laws.” Some historians argue that the drafters and ratifiers of the 14th Amendment did not themselves think it excluded racially segregated schools. But when laws include straightforward terminology like “equal protection of the laws,” later generations can interpret them in a straightforward way.
In Brown v. Board, the Supreme Court acted like a legitimate court by applying rather than making law. In Roe v. Wade (1973), however, the Supreme Court abandoned constitutional interpretation for judicial lawmaking and judicial amendment of the U.S. Constitution. In that decision, the court ruled that the Constitution requires states to only minimally regulate abortion in the first trimester of pregnancy. Greater regulation was permissible in the second trimester and states were allowed to ban abortion in the third trimester, except to protect the mother’s life or health.
In Roe, the court did not even bother to point to a particular passage or passages in the Constitution to justify its sophistry. The court relied for authority instead on its own incoherent vaporings in a previous case. In Griswold v. Connecticut (1965), the majority on the court wanted to strike down an 1879 Connecticut law banning contraceptives. Unable to find any provision in the Constitution that would give them the power to do so, a majority of the justices staged a judicial coup d’état.
Justice William O. Douglas claimed that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” These mysterious emanation-created penumbras, according to Douglas, include a “zone” of privacy, which later courts converted from a zone into a “right.” This phantasmic “right of privacy,” long hidden unseen and unsuspected within the penumbras of the emanations, became the basis for much of the court’s subsequent fiats governing abortion, contraception and gay rights, from Roe v. Wade onward.
But doesn’t the end justify the means? To ask the question another way, would the use of contraceptives even by married couples in fact still be outlawed in Connecticut and other states today if the Supreme Court had not made up this ridiculous nonsense? Would gay and lesbian Americans be widely persecuted throughout America but for heroic Supreme Court justices pretending to find zones within penumbras of emanations of the Bill of Rights?
Almost certainly not. We know from other, similar liberal democracies in Europe and elsewhere that the liberalization of laws regarding contraception, abortion, and gay rights have occurred around the same time as in the United States, reflecting trans-Atlantic changes in public values. In some cases, activist judiciaries played a role, but in many others the results came about through normal democratic processes like parliamentary legislation and popular referendums.
Nor has the Supreme Court typically been ahead of public opinion and congressional legislation on controversial issues of race and sexuality in the United States. The Civil Rights Movement was in full swing when the court weighed in with Brown v. Board in 1954, six years after the Democratic Party had split over civil rights in 1948, and only a decade before Congress passed the Civil Rights Act of 1964 and the Civil Rights Act of 1965. Abortion was being legalized in many states before the court belatedly interjected itself into the issue. The same is true of gay rights and gay marriage, which were on their way to majority acceptance before the Supreme Court suddenly intervened. In its opportunistic interventions in public debates, the Supreme Court typically follows the advice of Alexander Pope: “Be not the first by whom the new are tried/Nor yet the last to lay the old aside.”
The deeper problem here is that by using sophistical assertions to abruptly shut down a national controversy, the Supreme Court cancels democracy itself. Supreme Court decisions that constitutionalize alleged “rights” replace a healthy democratic debate in which different sides can compromise, with an unhealthy, polarized, all-or-nothing debate, in which one side defends a fictitious “constitutional right” and the other demands that presidents appoint justices to the Supreme Court who will vow to overturn an earlier majority’s holding. Negotiations in public among elected officials who can be rejected by voters are replaced by secret negotiations among Supreme Court justices who are appointed, not elected—and remain in office until they voluntarily resign or die.
After decades of arbitrary jurisprudence by activist justices, the American public has come to understand that the Supreme Court is a legislature, not a court. It is a weird and repulsive legislature—a legislature for life, with nine members who are appointed, not elected, who at present are all lawyers from two U.S. law schools, made up disproportionately of unworldly individuals born into elite families with limited real-world experience—but a legislature nonetheless.
Indeed, of the three legislatures in the United States—the House of Representatives, the Senate, and the Supreme Court—the Supreme Court is by far the most powerful. The court can strike down laws passed by the other two legislatures, the House and Senate, and signed by the president. At the same time, the Supreme Court can immunize its own de facto lawmaking by immediately putting the laws it makes—“rulings”—behind a locked glass case in the Constitution, where they can never be modified or repealed, except by a future Supreme Court majority, or a formal constitutional amendment.
Further evidence that the Supreme Court is a now a lifetime legislature that nobody voted for comes from the blatant partisanship of the justices. If the Supreme Court were a court, it would not matter whether the justices were Republicans or Democrats. There might be scholarly differences among schools of judicial interpretation, but these schools would not correspond with the two national political parties. In reality, American Supreme Court justices are simply ordinary party politicians disguised by intimidating black robes. Justice Scalia was revered by Republicans because he promoted Republican Party goals. Justice Ginsburg was idolized by the left because she was seen first and foremost as a crusading Democratic activist.
If the justices of the U.S. Supreme Court are going to act as partisan legislators, at least they can be directly elected by the people. Forget presidential appointments. Let Americans elect Supreme Court justices! No legislation without representation!
Michael Lind is a Professor of Practice at the Lyndon B. Johnson School of Public Affairs, a columnist for Tablet, and a fellow at New America. He has a master’s degree from Yale and has taught at Harvard. His most recent book is The New Class War: Saving Democracy from the Managerial Elite.