In the second presidential debate, Hillary Clinton described her ideal Supreme Court Justice: someone who “understands the way the world really works, who ha[s] real life experiences.” During Wednesday’s final debate, she called for a Supreme Court that would “represent all of us.”
But neither time did she say a word about commitment to the Constitution or to the text of a statute.
Clinton’s unapologetic call for judicial activism should be frightening. But truth be told, liberals are not the only ones advocating for “judicial engagement.” Debates over religious liberty, marriage, and abortion suggest that both right and left have abandoned the idea of judicial restraint, thus forgetting the Constitution our Founders envisioned.
The Supreme Court Wasn’t Meant to Be This Powerful
The Supreme Court was not always so central to American life: Alexander Hamilton famously described the federal judiciary as the “least dangerous” branch of government. The Constitution itself says surprisingly little about the court. Article III declares that “the judicial power of the United States shall be vested in one Supreme Court and in such inferior Courts as the Congress from time to time ordain and establish.” What “judicial power” is, however, and how it works is unspecified.
At the country’s inception, Hamilton’s humbler view of the court’s role was entirely accurate. The Supreme Court was a rather boring institution, and was held in relatively low esteem. It heard no cases its first two terms, and only 50 cases during its first 10 years. The Justices were required to “ride circuit,” spending approximately half the year trekking across the country by horse, stagecoach, and riverboat to sit as federal trial judges. This arduous duty led many notables, including Hamilton himself, to turn the job down.
All that changed with Marbury v. Madison, the famous judicial review case. Chief Justice Marshall concluded that “the judicial power” referred to by Article III of the Constitution included the power to review a statute and—this was critical—declare it void if contrary to the Constitution.
Marshall’s conclusions are by no means obvious from the text of the document itself. Nevertheless, Marshall’s notion of judicial review set the Supreme Court on the road to stardom. It empowered the court to sit as a review board on national and state legislation—a role the court fully embraced once Congress gave it the time.
The Federal Court System Has Only Grown With Time
Along with Marbury, the elimination of the Supreme Court’s mandatory docket and creation of the federal courts of appeals thrust the judiciary into the limelight. In its first century, the court’s primary role was to correct mundane legal and factual errors made by the federal trial courts. The courts of appeal did not yet exist, and the Supreme Court was required to review nearly every civil case in which its views were sought.
As the Reconstruction Congress enacted more regulatory legislation, the court’s docket became unmanageable. It swelled to over 1200 cases in 1880. The overloaded docket meant that cases received little attention and decisions took years.
In 1891, Congress created the federal courts of appeal to relieve some of the workload, and in so doing, gave the Supreme Court the time and opportunity to put their Marbury power into full effect. By 1925, Congress had made the vast majority of the Supreme Court’s docket discretionary. That meant the Supreme Court could largely set its own agenda by choosing which cases it would hear. The court would no longer sit primarily to correct run-of-the-mill errors. Instead, it decided important questions of federal law. Perhaps not surprisingly, the court has spent much of its time striking down congressional and state laws it regards unconstitutional.
The Supreme Court’s Rise to Power
To say the Supreme Court has grown in power since the Constitution’s framing hardly does justice to the transformation. Today one can only quote Hamilton’s assurances about the “least dangerous branch” ironically.
The change is not all loss. On the upside, judicial review acts as a check on the elected branches. The Supreme Court can ensure that governmental power remains limited, and resist incursions on the Constitution’s structure and liberties by the other branches.
But the power claimed by the current judiciary is dangerous, too. The problem, of course, is that the judiciary is unelected and thus unaccountable. The counter-majoritarian dilemma made famous by Alexander Bickel is very real. When the federal courts strike down a law of Congress, they invalidate the decision made by the people’s representatives.
This is all well and fine when federal courts stick to the text and original meaning of the Constitution and laws they are interpreting. But when courts stray beyond those sources and impose their own values and “understandings,” they take the fundamental freedom of self-governance away from the people.
Thus, any call for “judicial engagement” should carefully confine the judicial role to interpreting statutes, not making them. The prospect of an unelected committee of nine deciding cases—based on their understanding of “how the world works”—should be a non-starter.
There is no doubt that today’s Supreme Court is a political star. But boring would be better.
Erin Hawley is a legal fellow at Independent Women’s Forum and former clerk to Chief Justice John G. Roberts Jr.