Within the past week the U.S. Supreme Court has decided that the death penalty could not be used as a punishment for child rape and that the District of Columbia could not ban private ownership of handguns. Generally speaking, the first displeased the Right and the second displeased the Left. But as an outsider to constitutional law, most striking to me (and Mark Krikorian) are the similarities between these decisions.
In neither case were the justices doing anything like what we mean in everyday speech by “interpreting the law”. They were simply making law based on personal judgment. I won’t try to parse these specific decisions (and am not competent to, in any event), but I will note that in both cases 56% of the justices supported one side and 44% the other side on questions that strike me as pretty fundamental, rather than the kind of technical corner issues on which experts in any field will disagree.
A more cynical man than I might go so far as to ask how the Supreme Court differs from a third legislative chamber. It has the word “court” in its name, but it hardly seems to behave anything like the local superior court where I sat on a jury. It holds hearings, after which the nine members vote, and the majority rules. Just like the House or the Senate does, this chamber held a couple of votes last week: the conservatives won one, and the liberals won the other. It’s true that the members aren’t elected directly, but are instead nominated by one elected official (the President) and voted on by 100 elected Senators. Of course, members of the Senate were also selected indirectly, by State Legislatures, for more than a century. Further, this third chamber can not originate legislation (though the Senate also has restrictions on the kinds of legislation that it can originate), but on the other hand has a veto power on all legislation that is (currently treated as) final and absolute.
It seems that one reality of contemporary American government is that any restrictions on behavior that rely on “judgmental” prohibitions tend to be worn down to meaninglessness over time. As an example, the Senate filibuster was used only rarely, and for cases viewed as imperiling some deep interest, within living memory. Now, as far as I can see, any measure requires 60 votes to pass the Senate. The same basic dynamic appears to be true for presidential signing statements, to choose an executive branch function.
Thus far, we have not degenerated to the late-Roman logical endpoint of this process, in which we debate the meaning of words like “majority”, “five” or “four”. When you get to this stage, of course, the constitution, or any law, means what those who control a preponderance of armed force say it means (or more precisely, act as if it means). The logical response of an executive in such a regime who can count on the loyalty of the army is simply to laugh when presented with an “order” by nine old men and women without guns. More likely, a shrewd politician, recognizing the vestigial memory of rule of law, would couch refusal to obey in some comforting legalisms in order to minimize opposition. Isolated incidences of the executive simply refusing to obey a Supreme Court ruling have happened in U.S. history. This is why it was so incredibly dangerous for President Clinton to say “It depends on what the meaning of the word ‘is’ is”. Ultimately, the project of constitutional governance, and the rule of law itself, requires that we share a good-faith understanding of the meaning of words. Of course, before conservatives pat themselves too hard on the back, remember that this was in the context of an impeachment proceeding that was, even seen in its best light, playing with fire.
It seems to me that the choice confronting principled conservatives faced with a court that has become something like a legislative body is either to: (1) mouth platitudes about “appointing justices who will interpret the law, not make the law”, while in practice making sure to put “our guys” on the court who will rule “our way”, or (2) actually select justices who see a much narrower scope of authority for the Supreme Court, and speak out aggressively when they go beyond this remit, especially when the substance of the specific ruling cuts against what is typically seen as the conservative outcome.
The second choice might seem like unilateral disarmament, but I don’t see it that way. I think that, over time, the electorate will recognize and support those who take this approach. And if I’m wrong about this, and they basically don’t care, then the constitutional regime is doomed anyway.