Do We Need a Supreme Court? The Case for Limited Judicial Review

The United States Supreme Court should stop deciding cases involving ambiguous constitutional provisions where reasonable people can differ regarding the meaning of those provisions. In such instances, the Court should defer to the legislature and thus only decide cases that involve clear violations of the Constitution. Otherwise, the Court – as it has done for years – will involve itself in deciding important issues that should be left to democratic choice.

When the Court decides cases where constitutional provisions are ambiguous (and subject to different interpretations), nine unelected and life-tenured judges impose law and policy on an entire nation, often based on nothing more than their policy preferences or the political affiliation of the justices’ current members. If you doubt that, consider Dobbs v. Jackson Women’s Health, where the Court overturned Roe v. Wade and returned to the states the question of abortion’s legality.[1] What exactly changed from Roe to Dobbs? The justices’ political affiliations and policy preferences, as Justices Brett Kavanaugh and Amy Coney Barrett (conservative jurists) replaced Justices Anthony Kennedy and Ruth Bader Ginsburg (moderate and liberal jurists, respectively). After Dobbs, it appears that constitutional meaning doesn’t mean anything at all; rather it depends on whether a majority of the Court’s members, at any given time, are liberal or conservative. That reality, which Dobbs underscored, is a recipe for undermining democracy and politicizing the Court, which undermines its institutional legitimacy. If anyone questions how political the Court has become, look no further than the Senate’s confirmation hearings, which beginning with Robert Bork have more closely resembled an episode of Jersey Shore than a meaningful discussion of a nominee’s record and character.

For these and other reasons, the Court should not decide cases (i.e., it should deny certiorari), particularly those involving important social and political issues, when the Constitution provides no clear answer to the question presented. Indeed, the Court’s track record of deciding such cases has been deeply troubling. For example, in Citizens United v. FEC, the Court, by a 5-4 margin, invalidated a statute that restricted independent expenditures by corporations, labor unions, and other entities, and was intended to limit the deleterious and corruptive effect of money in federal elections.[2] Neither the text nor the original purpose of the First Amendment provided clear guidance on the statute’s constitutionality and reasonable people could – and did – disagree on its constitutionality. Why, therefore, did the Court get involved? And why, when the Court did get involved, did it issue a decision that all but ensured that money would continue to corrupt the political process? Your guess is as good as mine.

Likewise, in Clinton v. New York, the Court held by a 6-3 margin that the Line-Item Veto Act, which gave the president the authority, subject to congressional override, to veto certain portions of spending bills.[3] The Act, which was passed on a bipartisan basis, sought to reduce wasteful government spending, and thus promote fiscal responsibility. The Court, however, invalidated the Act, holding that it violated the Constitution’s Presentment Clause, even though the Presentment Clause is so broadly worded that it could arguably be interpreted in different ways. Yet, the Court got involved and invalidated the Act, which hindered Congress’s attempt to reduce wasteful government spending. The reason, again, is anyone’s guess.

To make matters worse, in Griswold v. Connecticut, the Court invented constitutional doctrine out of thin air to invalidate a Connecticut law that banned contraception.[4] Although the law was ridiculous, there was no language in the Constitution that could support invalidating the law. Instead of deferring the legislature, however, the Court held that the Constitution’s text contained invisible “penumbras,” which give life and substance to the text, and from which the justices – and the justices alone – could create unenumerated constitutional rights. Based on this reasoning, the Court created an unenumerated right to privacy under the Fourteenth Amendment’s Due Process Clause even though the text of that clause could not possibly support creating this right. After Griswold, the Court showed no hesitation in “discovering” additional unenumerated rights in its invisible “penumbras,” such as the right to abortion in Roe, which the Court deemed, without any support in the text whatsoever, encompassed within the “right” to privacy. It should come as no surprise that Roe eventually met its demise in Dobbs; when Dobbs was decided, there were more conservative than liberal justices on the Court. That’s the problem with unwarranted judicial intervention and with creating rights out of thin air – it turns law into politics.

Additionally, in Snyder v. Phelps, the Court by an 8-1 margin held that the First Amendment permitted members of the Westboro Baptist Church to stand outside of a funeral honoring a soldier who had been killed in Iraq and hold signs stating, among other things, “God Hates Fags” and “Thank God for 9/11.”[5] As Justice Alito emphasized in his dissent, this degrading and demeaning speech had no social value whatsoever and contributed nothing to the marketplace of ideas. Furthermore, nothing in the text or the original purpose of the First Amendment compelled this result. Yet, the Court decided to intervene and reached an outcome that was as abhorrent as the speech it protected.

Similarly, in Kennedy v. Louisiana, the Court held by a 5-4 margin that imposing the death penalty on a convicted child rapist violated the Eighth Amendment’s guarantee against cruel and unusual punishment.[6] What exactly in the Eighth Amendment’s text or based on its original purpose supported this result? Absolutely nothing. But that did not stop the Court from prohibiting legislatures nationwide from authorizing a punishment that many viewed as appropriate for such a heinous crime.

And, of course, one cannot forget the Court’s holding in Students for Fair Admissions v. Harvard, where the Court, approximately forty-five years after Regents of the University of California v. Bakke was decided, suddenly discovered that affirmative action was unconstitutional.[7] Regardless of one’s views on affirmative action, it cannot be reasonably disputed that, like in Dobbs, the only reason that affirmative action met its demise was because the newest justices were appointed by a Republican president. Students for Fair Admissions also highlights the problem with “living constitutionalism”: you never know whether the Constitution will “evolve” a liberal or conservative direction.

These are just a few examples of the Court’s failure to respect the constraints on its power. At times, it appears that Chief Justice Roberts, to his credit, has been concerned about this problem. In National Federation of Independent Investors v. Sebelius, for example, Roberts provided the fifth vote to uphold critical portions of the Affordable Care Act, holding that such provisions were a valid exercise of Congress’s taxing power.[8] Now, does anyone think that Chief Justice Roberts truly believed that the Act’s individual mandate was a tax rather than a penalty? Whatever one’s answer, it was clear that Justice Roberts’ decision was predicated on a desire to protect the Court’s institutional legitimacy and for the Court not to be viewed as politically motivated in its decision-making process. Chief Justice Roberts did the right thing but went wrong when, in Shelby County v. Holder, he voted to invalidate sections of the Voting Rights Act even though the Senate had reauthorized those provisions unanimously.[9] It is precisely this type of inconsistency that undermines the very legitimacy that Roberts seeks to preserve.

Ultimately, the Court’s legitimacy depends on the public believing that the justices’ decisions are based on the Constitution’s text and free from political preference or policy predilection. When the Court intervenes to decide cases where the text is ambiguous and subject to reasonably different interpretations, it often does so, as in Dobbs and Students for Fair Admissions demonstrate, for no other reason than that the justices have the votes to invalidate a law or policy that they don’t like. That is wrong, and citizens of all political persuasions should object to a Court that reserves for itself the right to decide issues that belong to the people and democratic process.

After all, consider the justices themselves. Certainly, they are honorable and incredibly accomplished people. But they are not ordinary citizens. Most of them graduated from Ivy League law schools, grew up in upper-middle class to wealthy households, attended private high schools and elite undergraduate institutions, and enjoyed immense privilege. This does not make them bad people or warrant criticism of them, but it does not make them uniquely suited to decide for an entire country issues that matter so much to (and affect) ordinary citizens. Let the people decide. Give them a voice.

Of course, some may argue that the Court has the authority to say what the law is, particularly where there are circuit splits on important constitutional and public policy issues. That argument is not convincing. First, circuit splits are fairly common, and the Court only decides a fraction of cases where such splits are present, thus allowing many splits to persist. Second, the presence of a circuit split is not always or inherently problematic. Some courts interpret statutes and constitutional provisions differently, and this may lead to varying legal and constitutional protections based on the state or region within which you live. That fact alone does not necessarily lead to injustice or inequality. Some courts, for example, may uphold certain abortion restrictions and others may not, and some courts may hold that the death penalty is unconstitutional while other courts may not. Indeed, just look to state legislatures, where laws and the rights they confer (or restrict) differ substantially. That’s called democracy and sometimes, it’s better to be divided rather than united. People have different views and where the Constitution is silent or ambiguous, those views deserve a voice over those of nine unelected and life-tenured justices.

At the end of the day, when constitutional interpretation is nothing more than a political game, it is a game not worth playing. Without limiting judicial review, we may continue to be haunted by that ghost called “substantive due process,” or those invisible penumbras that lurk in the background, just waiting to strike when enough justices believe in their existence. And be ruled by nine unelected justices who think they can somehow divine the “evolving standards of decency that mark the progress of a maturing society.”[10]

 

[1] 597 U.S. 215 (2022); 410 U.S. 113 (1973).

[2] 558 U.S. 310 (2010).

[3] 524 U.S. 417 (1998).

[4] 381 U.S. 479 (1965).

[5] 562 U.S. 433 (2011).

[6] 554 U.S. 407 (2008).

[7] 600 U.S. 181 (2023); 438 U.S. 265 (1978).

[8] 567 U.S. 519 (2012).

[9] 570 U.S. 529 (2013).

[10] Trop v. Dulles, 356 U.S. 86 (1958).