Comment: Judicial branch may learn there are checks on it, too

By Jonathan Bernstein / Bloomberg Opinion

If you had any doubt that Republican objections to judicial activism would melt away if conservative judges gained the upper hand, Supreme Court Justice Samuel Alito and some of the judges on the U.S. Court of Appeals for the Fifth Circuit, in Texas, should put it to rest.

The two relevant data points are the leaked draft of an opinion by Alito that would overturn the 1973 abortion-rights precedent Roe v. Wade and a Fifth Circuit decision this week challenging the authority of the Securities and Exchange Commission. We don’t know yet what the final result of the abortion case will be, and the SEC case is for now just the work of two mid-level judges. But Alito reportedly has the majority of the court, and it’s likely that the Fifth Circuit decision will prevail, too, in some form or another.

What both of these decisions tell us is that Republican judges — at least some of them, and probably most of them — intend to use their positions aggressively, regardless of popular opinion, the electoral context or anything else. They hold office, and they intend to strike down laws and practices they disagree with.

At the most extreme, this could mean the demise of a constitutional privacy right established by a line of cases going back to 1965, and, as Levine explains, most of the way that the executive branch has functioned for some 90 years. The Supreme Court has already knocked out most of the 1964 Voting Rights Act, part of the core of its era’s expanded U.S. democracy. It has also made campaign-finance regulation a dead letter. (As it happens, I’m no fan of most campaign-finance laws, but I do think Congress is empowered to pass laws I disagree with. But then again, I’m not a Republican Supreme Court justice.)

Put aside that this makes a mockery of some 50 years of complaining about judicial activism; anyone paying attention knew decades ago that the only way “activism” made sense as a critique is if it meant only that courts should never rule against conservative interpretations of the Constitution. Movement conservative Republican Supreme Court justices, from William Rehnquist to Antonin Scalia to Alito and Clarence Thomas, have never acted in any way consistent with any other meaning of “activist.” They haven’t hesitated to intervene against the other branches when they had the votes to do so.

What matters now is whether they will show any restraint at all; not because of some supposed principled stand against activism, but because the courts can, and probably should, follow the election returns at least to some extent. No one expects judges to suddenly change their entire approach to constitutional law based on which party is in office, and the constitutional design of the court suggests that the influence of past electoral majorities should persist even when they are replaced by new election outcomes.

But it’s one thing for the past to be represented by judges chosen by politicians long out of office. It’s another for those judges to completely ignore more recent majorities, and in fact try hard to overturn their effects. That’s where prudent judges might exercise some restraint. They could, for example, partly or even mostly gut the abortion right established by the Supreme Court in Roe in 1973 and upheld in Casey v. Planned Parenthood 19 years later instead of flat-out overturning those decisions. Now we know that their answer is: Nope. Not at all.

They certainly can do that, undermining the work of the elected branches and ignoring judicial precedent because they have the votes to do so. But the more they do that, the more likely it is that the elected branches will fight back in one form or another, perhaps, for example, by trying to pack the court.

If Republicans are popular and win elections this November, in 2024, and into the future, then there may be no democratic disconnect between the courts and the other branches; although I suspect few Republican politicians, and even fewer Republican-aligned groups, really want to return to a pre-New Deal government. Just as I suspect that a lot of Republican politicians aren’t really eager to engage in fights about abortion, contraception and sexual orientation, although to be sure many other Republican politicians can’t wait to start legislating in those areas.

But if Democrats continue to win enough elections to have some say in things? Then what Alito and the Fifth Circuit and other Republican judges are doing is going to produce showdowns with the elected branches. One thing we know is that the framers of the Constitution anticipated and even counted on competition between separated institutions sharing powers.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. A former professor of political science at the University of Texas at San Antonio and DePauw University, he wrote A Plain Blog About Politics.