Americans deeply disagree on the substance of many constitutional issues. Does the Second Amendment cover semiautomatic rifles? Does a woman have a constitutional right to an abortion? But there is one area of broad agreement: The Supreme Court will have the final say, like it or not.
“Let’s let the courts decide whether it’s constitutional. That’s not for Congress to decide, that’s why we have courts to make that decision,” said Representative James Clyburn, a South Carolina Democrat who had himself taken an oath to uphold the Constitution, in 2014, when President Barack Obama faced constitutional scrutiny over a forthcoming executive order protecting millions from deportation. Similarly, Mitch McConnell, the Republican and Senate majority leader from Kentucky, was initially skeptical of President Donald Trump’s plan to stop immigration from a series of Muslim-majority countries. But he was content to punt: “Ultimately it is going to be decided in the courts as to whether or not this has gone too far.”
This consensus around judicial authority—which raises the question of why members of Congress take an oath to the Constitution if it is up to someone else to uphold it—would surprise the constitutional Framers. For them, constitutional politics—the institutional rivalries that maintain the separation of powers, and the public opinion that supervises them—played an essential role in both interpreting the Constitution and inhibiting judicial abuses. James Madison thus wrote that giving the judiciary the last word on constitutional questions “was never intended, and can never be proper.”
The Constitution, in fact, contains tools that enable elected officials to control the courts. Restructuring them is one. This option came up recently; in August, Senator Sheldon Whitehouse, a Democrat from Rhode Island, led several of his colleagues in filing a brief with the Supreme Court regarding the scope of the Second Amendment. It accused the Court of being governed by partisan considerations and concluded with a scarcely veiled threat: Quoting a recent poll about the judiciary, the brief hoped the Court could “heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”
This threat may have been overheated—after all, the “neutral justiciability principles” the senators insisted be followed in the case of gun control could not have generated many landmark precedents sacred to the left—but congressional authority to control the court is unquestionable.
It could not have been otherwise, because the Framers feared unchecked authority for any institution of government, a mood the pseudonymous writer Brutus—an opponent of the Constitution—captured in arguing that the document did not sufficiently check judges: “In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will soon feel themselves independent of heaven itself.”
Supporters of the Constitution were eager to dispel this impression of unchecked judicial power. In “Federalist No. 81,” Alexander Hamilton denied that the Supreme Court could get away with sustained abuses of its power, in part because Congress could retaliate by impeaching justices—a second tool available to elected officials seeking greater control over the courts. “This is alone,” he wrote, “a complete security.”
A third option for controlling the judiciary is Congress’s power to place boundaries around the Supreme Court’s jurisdiction. This power of “jurisdiction stripping” results from Article III of the Constitution, which gives the Court appellate jurisdiction in certain categories of cases, “with such exceptions, and under such regulations as the Congress shall make.”
The political authority inherent in wielding these tools, in turn, is subject to the oversight of the people, who have proved reluctant to support its frequent use. Even in the throes of the Great Depression, Americans rejected Franklin D. Roosevelt’s plan to save the New Deal by adding several justices to the Supreme Court.
There is no comparable crisis that would justify congressional interference with the Supreme Court today. (Some assert that Donald Trump’s presidency presents such a crisis, but that is a crisis for voters, not judges, to consider.) The problem is not that these tools are unused, but rather that their deployment has become unthinkable. Justices know they will never be impeached for the content of their rulings, a power Congress has shunned since the abortive impeachment of Justice Samuel Chase in the early 19th century. Similarly, Congress should not restructure the Supreme Court because it disagrees with a single decision or even with a single generation of justices. But the idea that Congress could never legitimately do so encourages judicial arrogance.
Whether Congress is up to asserting its own authority is an open question. But Congresses in previous eras have, and nothing institutionally prevents them from doing so. It is solely a question of will, on which, ultimately, the voters must insist. America will not have constitutionalism without a public committed to it.
One reason these tools lie fallow is the public’s professed aversion to its national obsession: politics. The poll question to which the Whitehouse brief referred was sure to get a stark result because it introduced the sordid notion of politics into the judicial role. Yet politics is not simply inevitable in a republic. It is necessary and, when properly undertaken, noble. As Alexis de Tocqueville observed, politics draws humans out of the shells of individualism that otherwise characterize democracy. It orients them toward a public good rather than leaving them obsessed with personal rights.
George F. Will, one of the most distinguished proponents of the theory of judicial engagement—the belief that judges should be assertive in policing constitutional rights—argues for “the judicial supervision of democracy.” This is unquestionably part of the judicial role, but someone must watch the watchers.
The rise of judicial engagement on the right—accompanied by a long-standing support of judicial assertiveness on the left, except when the judiciary asserts conclusions of which liberals disapprove—has stranded skepticism of judicial power largely without a theoretical defense. “Judicial activism”—which is generally used to describe decisions one dislikes—has become a meaningless epithet not only because it is so widely used but also because it is so widely applicable.
Yet judicial supremacy undermines what Madison called “the vital principle of our free constitution,” which was “the will of the majority, regularly proclaimed.” This reference to “regular” politics meant majority rule should be conducted at a step of remove from the immediate whims of the people, but that it should still derive from their settled beliefs.
That includes the will of the people on constitutional questions. The Second Amendment, for example, clearly protects a right “to keep and bear arms.” But it does not settle the scope of that right. The people have a vital role to play in adjusting the boundaries of rights and interpreting the extent of constitutional powers.
The original meaning of the Constitution ought to govern interpretation of the document. But ascertaining that meaning is ultimately a political task. To say otherwise—or to claim that the Constitution, which is written in sparse and plain language, is so complex and obscure as to require the intervention of a priesthood of judges to tell the country what it means—is ultimately to free the people from the responsibility of self-government. Excessive deference to judges—especially on the grounds that politics should never contaminate constitutional questions—too easily lets elected officials and, in the end, the people they represent off the hook. If this is our Constitution, its maintenance is our responsibility.