Supreme Court Review: The Tyranny of the Majority

By Andrew Cohen

All of this week's important rulings were decided by a single justice. Don't like that? Vote in the presidential election.

scotus in review.jpgReuters

The story of this memorable United States Supreme Court Term, the most divisive of any I have covered, is actually a familiar story for court watchers. It's a story about the tyranny of the majority -- the power of the five over the four. It's a story about the difference between winning and losing, between making law and raging in dissent. Consider, for example, just the four big rulings the justices handed down this past week, the last week of their term, on cases as diverse as juvenile sentencing, immigration, health care, and military records.

Lawmakers pass the buck to judges and then rail at the judiciary for making a decision.

In each instance, the Court's conservative majority lost because Chief Justice John Roberts (in the Affordable Care Act and Arizona immigration cases) and Justice Anthony Kennedy (in the others) "crossed over" to deliver a result conservatives feared. But while the cumulative effect of the past 96 hours may be striking -- I mean, really, who had this Superfecta? -- it is hardly dispositive. Despite the week's rulings, the Court is still the most ardently conservative since the 1930s. Despite his curious vote for the Care Act, John Roberts still opposes progressive legislation. Each of the week's "victories" for progressive causes are laden with cautionary notes.

5-4 on Arizona. 5-4 on mandatory life sentences for young murderers. 5-4 on the federal health care law. 5-4 on the Stolen Valor Act. 5-4 on at least eight more decisions this term. There are many lessons in these statistics and in the hostile tones of the week's dissenters. Let me briefly raise one. The Supreme Court is in play this election season just as much as Congress or the White House. The Court is going to move in one direction or the other in the next five-to-ten years. Shouldn't we have an earnest national conversation about which direction we want to steer it?

Yet there is an obvious gulf between the rapt attention America pays to its big Supreme Court rulings and the perpetual indifference voters have about the judiciary. Everyone gets all fired up for landmark rulings and then everyone shuffles off and forgets about judges when it's time to vote. Worried the week's results are temporary? Vote this November with an eye toward judicial nominations to the federal bench. Don't like the results this week? Vote. Care about same-sex marriage or voting rights for the Court's next term? Vote. As Sen. Lindsay Graham (R-S.C.) always says: "elections matter."

Vote because, at the end of it all, and as we saw especially this week, there are the courts. Vote because the courts, and especially the Supreme Court, usually are required to make the hard choices that lawmakers are consistently unable or unwilling to make on their own. Just think of all the ambiguous and contradictory legislation the justices see each year. Just think of all the junk measures. Lawmakers pass the buck to judges and then rail at the judiciary for making a decision. Dear Lawmakers: if you had the courage to write clean laws judges wouldn't have to "legislate from the bench."

In the next few years, perhaps even next year, the Supreme Court will be asked to make decisions on some of the most fundamental pieces of our lives. What do you want that Court to look like? Justice Antonin Scalia, a scowling presence on the Court all week as he saw his radical plans checked, is 76 years old. Justice Anthony Kennedy, the mercurial swing vote who swung to the right on health care, will be 76 on July 23rd. It is quite possible that the president next year, whomever he is, may get to replace either or both of those men. Meanwhile, Justice Ruth Bader Ginsburg is 79 years old.

Who should replace these justices? Who should next hold the power they hold? And which president do you want making that decision? If there is anything that can be universally gleaned from this Court term, if there is anything upon which conservatives and progressives may agree, it is that the federal judiciary matters more as Congress matters less. Just think what a difference one vote on the Court would have made this week, this month, this term. Do your homework and then vote. The courts matter every day -- not just on the days when you happen to be following their work.

Our federal courts are supposed to be a bulwark against the tyranny of the majority. But our federal courts are populated by men and women who are selected by majority rule. Whether you are furious or relieved at this week's Supreme Court news the fact is that you are ultimately responsible for that fifth vote that turned the tide in those four cases. And you will be responsible, too, for all of the coming Supreme Court doozies heading our way. Unaccountable judiciary? Please. The judiciary is typically more accountable than Congress or the executive branch. And often more courageous, too.

This article available online at:

http://www.theatlantic.com/national/archive/2012/06/supreme-court-review-the-tyranny-of-the-majority/259025/