The NYT notes today that, “This month, former Justice Sandra Day O’Connor told an audience at Georgetown University that a judiciary afraid to stand up to elected officials can lead to dictatorship. Last month, speaking in South Africa, Justice Ruth Bader Ginsburg said that the courts were a safeguard “against oppressive government and stirred-up majorities.”
I agree in large measure with O’Connor, but I think Ginsburg has it badly wrong. There is nothing inherent in the judicial system that makes it a safeguard against oppression, as African-Americans discovered, if they did not already know, when the Supreme Court announced they were not people, and citizens of Japanese descent found out when the Court agreed they could be put in concentration camps, to cite just two examples of many.
A lesson of history is that the farther government gets from the people, the more it tends to repression. The judiciary is the unelected political branch of our government — nothing less … but nothing more.
In both the cases you cited above, the Court was validating policies supported by the public and the other branches of government — they were certainly bad decisions, but they had nothing to do with the Court being “far from the people.”
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There are many other cases in which courts have stood up for the rights of minorities (Brown v. Board of Education, our own MA gay marriage decision), but courts, like any other branch of the government, are not perfect and have often supported repressive or regressive (or both!) policies.
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Fundamentally, though, my problem with this post is the idea that judges’ unelected status is a liability. I view that status as a blessing — we need a body of government willing to support the rights of vulnerable minorities, and elected bodies tend to be less willing to do that. A government of “the people” can be extremely oppressive (look at populist anti-immigration feelings on the right). Unfortunately, it seems like neither closeness to or distance from the people is any guarantee of liberty-loving government.
Elected officials gain office by means of money, charisma, demographics, and voter appeal. The whole meaning behind an unelected judiciary is to put intellectuals into place, so that the Constitution is fairly, and intelligently interpreted. We don’t want justices worrying about how their decisions might impact their reelection bids. The framers specifically made the justices unelected for that purpose…freedom from political pressure, and ability to have justices with intellectual prowess specifically in the field of jurisprudence (ideally, anyway). They have lifetime tenures so they are free from the normal political BS most other officials must endure.
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Justice Marshall laid all this out in his Marbury v. Madison opinion, the keystone decision for judicial review. Elected officials, and in particular the President, are primarly held accountable for their actions through the political system. In other words, they do something oppressive or wrong, they pay for it by not getting reelected, or becoming ineffectual in their own branches. They are not supposed to be experts at Constitutional law. A good deal of elected officials don’t even have a degree in law (take Congressman McGovern, from my home district, for example).
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To keep our elected officials on point, and to make sure they do not overstep the bounds of the Constitution, we need the greatest minds in constitutional jurisprudence making sure our more diverse representatives don’t overstep their bounds.
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But, don’t be fooled, there is unconstitutional legislation all over this country (see Louisiana or South Dakota, for example)…the SCOTUS just hasn’t seen it yet.
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Thanks for letting me get a refresher on constitutional law.
“Fundamentally, though, my problem with this post is the idea that judges’ unelected status is a liability. I view that status as a blessing.”
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Under the Constitution as originally drafted only the House was elected by the people. The Senate was elected by state legislatures and the President by the electoral college (who were not bound by a popular vote as they are today). Are you suggesting we go back to indirectly elected Senators and an indirectly elected President?
Bob,
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The electors are NOT bound by the popular vote. Remember the 2000 elector who voted for Lieberman (as President)?
The rules regarding electors voting on the popular will is a state-by-state issue.
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In some states, not voting the sentiment can result in jail time or fine. In other states, the electoral vote isn’t official unless it corresponds with the popular vote, so a faithless elector’s vote simply doesn’t count and the faithless elector is replaced. In two states (NH and NE IIRC!), the electoral votes aren’t required to be uniform; they represent the popular will of a region smaller than the entire state.
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So, sortakinda.
I cannot resist noting a couple of things. First, Patrick Hart is quite right to observe that neither slavery nor the Japanese internment camps were invented by the courts – those were given to us by the founders of our country and by the elected branches during WWII, respectively. It’s too bad that the courts didn’t react differently when given the chance to rid the country of them, but it would have been better if the originators of those immoral policies – who were much closer to “the people” than were the judges who missed their chance to eliminate them – had not implemented them in the first place.
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Second, I assume you’d agree that the majority view is not always morally, or constitutionally, correct. If that’s so, then there has to be an anti-majoritarian check somewhere in the governmental structure, or the majority always wins and we have a serious problem. Numerous studies of elected judges (1 , 2 , 3 , 4 ) have shown that they carry out that function significantly less well than appointed judges. What’s a constitutional democracy to do?
The majority isn’t always correct. Each justice has their own version on interpretation. While there are checks in the system, like impeachment…how often do you see SC justices getting impeached? Imagine if RB Ginsberg and JP Stevens died tomorrow, and Dubya could nominate anyone he wanted to the bench? Quiet a pickle. I guess it’s the same with all facets of a constitutional democracy. We place a great deal of faith in the system and the leaders who ascend to power as a result of the system.
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I guess if it got really bad, the Pres. could always try what FDR tried to do during the New Deal…stack the court with as many justices as you can, and only appoint the ones that you want. But, as we know…that didn’t work for FDR, and it probably wouldn’t work for any other President.
As to Dred Scott, the Court substantially expanded the repression of African-Americans by declaring that all were non-people — even free ones. There was no need for them to go so far, they just thought it would be a good idea.
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More to the point, why does anyone have confidence that five unelected members of an elite — who I might add do not have to be lawyers — will be more likely to protect the rights of minorities than the legislatively elected majority. By that argument, the French aristocracy should have done fine in 1789 and the Chinese Communist government is a model worthy of serious consideration.
is not that majorities never adequately protect minorities – obviously the basis of democracy as opposed to your examples is that generally majority rule works better than dictatorship or monarchy. The point, rather, is that sometimes majorities do fail, and sometimes quite significantly, and in those instances it’s useful to have a countermajoritarian check on otherwise unchecked majority rule. It’s called checks and balances.
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As to Dred Scott, the case never would have happened if “the people” in 1789 had outlawed slavery like they should have. But they didn’t – they failed. The fact that the Supreme Court later also failed doesn’t lessen the gravity of the initial error.
I think it’s very important to note that the Court has made landmark decisions both good and bad. Frankly, (and not intending to be rude at all) I think playing the Dred Scott card is a bit like playing the Nazi card; it’s pretty clear that that was a regressive and repressive decision by the Court, and everyone, Court included, has abandoned it. What about the Warren Court era? Many times during that period, five or more took a stand for views that were unpopular and certainly in the minority. I agree that the current Court has problematic credentials in terms of protecting minorities and unpopular views, but in theory its unelected status, I believe, is a strength. I’m with Robert Dworkin, who has theorized that the potential of the Court, an anti-democratic institution, to step in and protect those for whom majoritarian democracy is not functioning far outweighs its danger of anti-democratic actions. The Court certainly does not have a perfect record on correcting injustice or seeing the clear path to future fairness, but it has also frequently been able to correct misguided decisions. We should give it credit for this, and cross our fingers (and elect some Democrats to Congress) that we won’t have to live through an age that will later need to be corrected.
The Court doesn’t seem to be doing a very good job protecting the minority of people who believe that abortion is murder.
I tend to feel that the way to go on constitutional issues that are highly personal in nature (many of which fall under privacy jurisprudence) is to side with the most permissive side. This protects, as far as is possible in my view, both sides. In the case of abortion, keeping abortions legal is the side that allows the most people to follow their own conceptions of what is right in their decision-making: those who want abortions can have them, and those that don’t don’t have to get them.
When I talk about the Court’s ability to protect those for whom the democratic process is failing, I mean those who are denied the ability to make certain decisions about their own life or to take certain courses of actions that are open to others. This includes most of the groups the Court treats as “suspect classes”. Clearly the Court cannot and should not protect every minority – if the losing side of any democratic argument could go to the courts for redress, nothing would ever get accomplished and no laws could be made. It is not the Court’s responsibility to side with the minority view that stealing should be legal, or the view that drugs should be allowed to be freely sold in school zones. It is the Court’s responsibility to allow people to make decisions about their own lives in an equal manner. As I said above, sometimes it’s spot on in this pursuit, and sometimes it misses, but I believe it is the Court’s responsibility and purpose to at least genuinely try.
Are not subject to the majority passions that often produce oppression in the first place.
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I feel like the French aristocracy/Chinese communist arguments, as well as your question earlier about whether I would go back to the President and Senate being unelected are straw man arguments. No one (certainly not me) is advocating for a return to 1787 voting practices or a monarchy; what I do support (very strongly) is a system of CHECKS AND BALANCES; in that system, it should be courts’ role to step in when the rights of minorities are being violated. Justices, insulated from but certainly aware of the political process, are in a better position to do so than politicians, for whom there may not be any political gain in standing up for the rights of a disliked minority.
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No one thinks the Supreme Court is always right or that it should take over the national government. But to have faith that the people will always get it right flies in the face of our own history, as well of the history of many democratic governments that fell pray to populist movements that started out repressing minority rights and ended up repressing everyone’s rights.
I’d like to hear your reaction to this argument . . .
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I’ve never really liked the term “counter-majoritarian”. After all, who is it that decides the counter-majoritarian check should exist? It’s the majority. The majority has to be in favor of the counter-majoritarian check, or that check wouldn’t exist. In a democracy, decisions are (or should be) always endorsed by the majority. Anything less would be anti-democratic.
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The trick is figuring out what the majority actually endorses. People have different desires of different degrees, and those desires can change and conflict. For instance, a majority on Monday may claim to be in favor of freedom of speech, and on Tuesday they may want to censor certain anti-American statements. So what is it they really want?
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The role of the court is to uphold the wishes of the majority, but in particular, the long-term ideals and principles the majority wants to preserve, as opposed to the short-term sways in public opinion. These principles may occasionally and momentarily conflict with the views of the public on a particular issue — that’s where the “counter-majoritarian” term comes from. But it’s not the court that sometimes conflicts with the majority — it’s really the majority that sometimes conflicts with the majority.
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In short, the courts are counter-majoritarian in so far as the majority itself is counter-majoritarian.
One scholar has compared the Constitution, and perhaps in this case by extension the Court, to Ulysses, who had himself tied to the mast so he could hear the sirens: short-term restraint for long-term benefit. A nice analogy with some truth. Personally, I think the Court serves the interests of the minority from which it is drawn. Remember that the “majority” that ratified the Constitution was a tiny fraction of the population and in no way comparable to the current voting population. That the Court has expanded its power over time relative to the elected branches is testimony to the power of this minority — which sometimes works for the general good and sometimes not. What it absolutely does not do, in MHO and the subject of my post, is serve as a structural safeguard “against oppressive government and stirred-up majorities.”
In having a government institution that does not have to worry about being voted out of office if it follows what it sees as the correct interpretation of the Constitution? Don’t you think such an institution, in some instances at least, could be better positioned to protect minority rights than a democratically elected legislature?
how can we label the majority wrong, or right for that matter? Right and wrong in the context of this discussion is largely subjective. I agree that the intenment of Japense Americans was a knee jerk reaction and “wrong” but wrong only in that I don’t agree with the decision. I cannot categorically prove that the decision was “wrong.” The reversal of such horrendous decisions such as Plessy for instance do not prove that the majority was wrong but simply that the majority has shifted. I raise this point only because the discussion has assumed that there is a right and wrong answer to societal problems and I do not think we can subscribe to such an assumption. I think the fact that the country has subscribed to this notion is precisely why the politics in our country are so contentious because instead of seeking common ground to move forward with the “best” ideas we are engaged in a losing battle of finding what is “right.”
for the greatest number, subject to a core of fundamental rights shared by all? Works for me.
I hate it when executive and judicial imperialists get in a pissing contest, especially so dishonestly.
The court doesn’t always get it right, and isn’t expected too. (What is right anyway?) But our Constitution is not a sacred document. What is sacred is the respect we give it and shared idea that we follow it. Thus, the Court has the power to interpret the laws and constitution. When they interpret a law in a way the majority does not like it is very easy to change that law so the Court cannot nullify it.
When the Court interprets the Constitution it takes an amendment to change it.
If we don’t respect the Court’s decisions, and it’s non-elected independence we are screwed.