Politics for Middle Children

The Judicial Branch: Out of Order

This post is the second of a three-part series on the branches of government.

Author’s Note: While this article is on the judicial branch, it focuses on the federal judiciary. The state court system is a whole other issue. 

When it comes to the three branches of government, the judiciary is by far the least sexy. While presidents are commanding soldiers to war and legislators are vehemently defending their constituents’ rights, the judges sit in their black robes playing referee. Nobody grows up dreaming of being a referee.

But while we’ve filled our heads with images of filibusters and campaign trails as symbols of our political system, the judicial branch has quietly usurped a great deal of power. Over the last 100 years, they’ve tackled some of our society’s thorniest issues—segregation, abortion, gay marriage—in ways that are far beyond their intended role. The Supreme Court’s increased move toward judicial activism has raised concern over separation of power, and their lifetime appointments insulate them from the people, creating a self-contained autocracy.

Rather than rein in what many critics see as the courts overstepping their bounds, politicians and lobbyists have begun to exploit it, funneling money into organizations like the Federalist Society and packing courts with like-minded judges. Court appointments have now become a part of political platforms, with candidates promising to install judges that align with their supporters’ ideals. In four years, President Donald Trump appointed three Supreme Court Justices and 54 appeals court judges, all of whom identified as conservative. By comparison, President Barack Obama appointed two Justices and 55 appeals court judges over the course of eight years.

Because of weakness in the legislative and executive branches, the judiciary has ended up taking on far more responsibility—and power—than the founders intended. They’ve shed the referee role and are now on the field, making decisions that affect the very fabric of our democracy for generations to come.

How can we restore order to America’s courtrooms?

The Least Dangerous Branch

As it is on most issues, the Constitution provides scant details on what exactly the judicial system should look like, an issue that caused concern among some founders and held up its ratification in places like Massachusetts and Virginia. Antifederalists such as Patrick Henry and Samuel Adams felt the Constitution provided citizens with insufficient judicial rights that would create an out-of-control system. Federalists like Alexander Hamilton, on the other hand, thought their fears were unfounded, writing in Federalist Paper No. 78 that since the judiciary controlled no armies and lacked spending power, it was the “least dangerous branch.”

A central argument between federalists and antifederalists during ratification was the issue of judicial review—the power of the courts to declare state and federal laws unconstitutional. Scholars at the University of Wisconsin Madison theorize that the founders didn’t mention judicial review in the Constitution because that power was implied and already widely in practice in Colonial-era courts. But once the Constitution was sent to the states, antifederalists pushed back, arguing that judicial review would allow judges to mold the law as they saw fit. “[They would be] independent of the people, of the legislature, and of every power under heaven,” Brutus¹ wrote in a collection of 1788 newspaper columns that would later be called the “Antifederalist Papers.” But federalists got their way, and the Constitution was eventually ratified without any clarifying language on judicial review.

Your high school civics course might have taught you that the first instance of the courts exercising this implied judicial review power was 1803’s Marbury v. Madison, and that decision set the precedent the Supreme Court would henceforth follow. But an interesting 2005 study by William Treanor, now the Dean of the Georgetown University Law Center, suggests there were more than 30 instances of courts striking down state and federal laws deemed unconstitutional before Chief Justice John Marshall ruled on Marbury. These cases, Treanor writes, “reflect widespread acceptance and application of this doctrine.”

This is interesting because the majority of European countries—whose principles often provided the founders with guiding frameworks—have a more decentralized method of conducting judicial review. A 2004 examination of European court systems by law scholar Victor F Comella found that most judicial review in most countries is more centralized and significantly limited. Most countries have special constitutional courts that are given the power to set aside legislation that is potentially unconstitutional, whereas in the US, any court can adjudicate constitutional issues in the course of deciding legal cases.

Nevertheless, the Marbury decision opened the gates to what Thomas Jefferson called in 1820 “a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.” It set the stage for cases like Dred Scott v. Sandford, the 1857 decision in which the Supreme Court ruled that the Constitution’s rights and privileges did not apply to people of African descent. Many attribute the ruling as a primary instigator of the Civil War². Likewise, the 1896 case Plessy v. Ferguson paved the way for a series of racial segregation laws that plagued the country for the next 60 years by establishing the Constitutionality of the “separate but equal” concept.

Activism or Restraint?

Another issue that’s evolved over the course of history is the philosophy judges adopt when examining cases. Law scholars generally divide these theories into two camps: judicial activism and judicial restraint.

If a judge assumes an activist stance, it means that they believe the court should act more as an instrument of policy. They look beyond the tactical language of the Constitution and statutes to consider the more aspirational portions of the founding documents—life, liberty, and so on. The idea of activism is to interpret the law in a way that would allow those aspirational ideals to become more of a reality.  

A judge exercising judicial restraint, on the other hand, subscribes to the belief their job is to simply play referee, staying as true to prior precedent as possible without taking contemporary values or social impact into consideration³. Critics often accuse judicial activists of blurring the separation of powers by “legislating from the bench,” while detractors of restraint point to tone-deaf blunders like Plessy v. Ferguson.

It’s important to note that judicial philosophy does not equate to political ideology, though the concepts are often conflated. For example, the 2010 Citizens United v. FEC case, which significantly changed the rules of campaign finance, was a cause championed by conservatives. But the Court’s ruling was an example of judicial activism because it broke with many precedents that had been previously set.

While examples of judicial activism cropped up during the Great Depression, its heyday began in the 1950s, when Chief Justice Earl Warren’s Supreme Court largely ignored previous precedent and ruled with an eye toward social justice. With Congress entangled over civil rights—Southern Democrats stalling or defeating every bill with a filibuster—the Supreme Court took it upon themselves to clear the logjam, passing down decisions like 1954’s Brown v. Board of Education, which overturned Plessy and abolished segregation in public schools. It became the first time the judiciary began to look at the Constitution as a living document, with Justices interpreting it in a more aspirational way.

Too Much Power?

Few would argue that Brown v. Board of Education made the country worse off, but it does raise questions about the role of the judicial branch.

It’s long been the American tradition that judges were selected because of their good character and sound legal mind, and their political views were unimportant. The court’s power came from the prestige and reputation of their impartiality. Presidents would appoint judges that shared similar ideologies, yes, but often, those judges ended up breaking party ranks. Justice Anthony Kennedy, for example, was nominated by Republican President Ronald Reagan but later became the deciding vote of Obergefell v. Hodges, the 2015 case that legalized gay marriage. Historically, the more pragmatic Justices have become more progressive over their careers, whereas the more ideological candidates tend to evolve less.

But more recently, the legal profession and politics have begun to intertwine in such a way that they’ve become inseparable. Presidents, unable to rely on a gridlocked Congress to push through their agenda, have increasingly turned to the courts to get things done. No President has been more brazen about this than Trump, who point-blankly declared he intended to appoint Supreme Court Justices who would overturn the 1973 Roe v. Wade ruling that made abortion legal. “I am pro life, and I will be appointing pro-life judges,” Trump said in a 2016 Presidential debate. “If we put another two or perhaps three Justices on, [overturning Roe v. Wade] will happen. That’ll happen automatically. ” 

One problem with judges having such a large hand in policymaking is that it’s not really their wheelhouse. Activist judges of the past had experience outside the law—Earl Warren, for example, was the governor of California for a decade before ascending to the bench. But for the most part, Supreme Court candidates are legal scholars, cloistered in academia without any legislating experience. This comes in handy when they’re asked to take deep dives on Constitutional law, but when it comes to keeping up with public policy and culture, they’ve proven to be largely clueless. In 2014, the Supreme Court caught a good deal of flak when hearing ABC v. Aereo, a case that dealt with a video streaming service accused of copyright infringement. According to a Reuters report, Justice Sonia Sotomayor repeatedly referred to Netflix as “Netflick;” Justice Antonin Scalia admitted he’d never heard of HBO.

Shopping for Justice

While the Supreme Court tends to get a majority of the press, there are over 100 other federal courts making daily decisions that can impact American lives—and plenty of people willing to exploit loopholes in them. One such loophole is the concept of forum shopping, where litigants exercise options to try their cases in a jurisdiction where the outcome would be more favorable. A good example of this is the District Court for the Eastern District of Texas, which, according to The New York Times, hears more patent law cases than any other court in the country because it is statistically more favorable to the plaintiff.

The use of “shadow dockets” as a political tool is also cause for concern. A shadow docket is the use of emergency orders and summary decisions that are made without hearing any oral argument. It’s historically been used when an applicant demonstrates they’ll suffer “irreparable harm” if the case is not immediately heard—like in the 1973 case where the Supreme Court ordered an immediate halt to President Richard Nixon’s directives to bomb Cambodia because the action was unconstitutional. But since 2017, the number of shadow docket cases has increased significantly, drawing significant criticism from legal experts. “The idea of unexplained, unreasoned court orders seems so contrary to what courts are supposed to be all about,” Harvard Law professor Nicholas Stephanopoulos told The New York Times. “If courts don’t have to defend their decisions, then they’re just acts of will, of power. They’re not even pretending to be legal decisions.”

Life Sentence

Another issue is the fact that federal judges are appointed—for life. This means that not only does the American public not have a true say in who is put on the bench, it has no recourse if it disagrees with the courts’ decisions. Laws can be amended and presidents can be voted out—the Supreme Court’s decisions are final, which smacks of imperialism.

Even more disturbing is the growing trend of appointing younger judges. According to data from the Federal Judicial Center, the average age of Trump’s federal court nominees was the youngest of any president since at least the beginning of the 20th century. His three Supreme Court nominations averaged 50 years old; his appellate judges, 47—a solid five years younger than the average age of judges nominated by Obama. This means judges can impact public policy for two decades or more after assuming power.

Following recent news of Justice Stephen Breyer’s retirement, it will be interesting to see if President Joe Biden follows the trend. He’s already promised to nominate a Black female to the Court, and the average age of his supposed shortlist of candidates is just over 50.  

Order in the Court

There are absolutely opportunities for reform that would help restore the balance of power. Article III of the Constitution affords Congress the ability to control nearly every aspect of the court’s structure, and it could pass legislation that limits the jurisdiction of lower federal courts. According to a 2020 research paper in the NYU Law Review, Congress also has the power to remove the Supreme Court’s authority over appellate cases, which comprises nearly 99 percent of the Court’s docket.  

Others have suggested a Constitutional amendment proposing regular Supreme Court nominations every two years and enacting an 18-year term limit. Brennan Center for Justice Chief Counsel Frederick Schwarz said doing so would “make the court more democratically accountable and end strategic requirements.”  

Policymakers have started to take notice of the courts’ power, but it may be too little, too late. Congressional attempts at court reforms—like last year’s Courthouse Ethics and Transparency Act—was met with criticism from the judiciary. In December, Chief Justice John Roberts said that courts “require ample institutional independence. The judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government.” The irony of Roberts’ statement is self-evident: they wish to be an instrument of political change, but don’t want to be the victim of political oversight themselves.

As Georgia State University Law Professor Eric Segall pointed out in a recent essay on the topic, “when we turn our backs on politics and seek to resolve our differences through the courts, we empower lawyers and disempower citizens. We must re-acquaint our citizens with both the labor and the pleasure of a well-functioning democracy by limiting the power of unelected, life-tenured judges.” That is, getting judges off the playing field and back to calling balls and strikes.

What’s Your Take?

I’ve shared my perspective on the judicial branch, and I want to hear yours. How can we restore order to the courtroom?

1. Brutus was the pen name of a New York antifederalist. Most historians believe it was either NY delegate Melancton Smith or John Williams, who later served as a NY Congressman.

2. The precedent set by the Dred Scott ruling was later nullified by the 13th and 14th Amendments.

3. Judicial restraint is often confused with “originalism”—the idea that any new law should be interpreted in light of the Constitution as it was written. The theory of restraint preaches measured, incremental change, not the upholding of the laws written in 1787.