By Ryan McMaken*
The current frenzy over the vacancy on the Supreme Court in the wake of Justice Kennedy’s retirement highlights just how much power has been centralized in the hands of a small number of people in Washington, DC.
The left has grown positively hysterical over the thought of yet another Trump-appointed judge being installed, who could potentially serve on the court for decades. Right-wingers who claim the left is overreacting, however, are unconvincing. One can only imagine the right’s reaction were Hillary Clinton president. She would have already had the opportunity to appoint Scalia’s replacement, and we might now be talking about her nominee to replace Justice Ginsberg.
The right-wing media would be filled with article after article about how the new court would be a disaster for health-care freedom, private gun ownership, and, of course, the unborn.
But, as it is, we live in a country where five people on a court decide what the law is for 320 million people. And for some reason, many people think this is entirely normal. It’s our own American version of the Soviet politburo, but few are even bothering to ask whether it’s a good idea.
After all, if it makes sense for a small handful of people to decide law for the entire country, why even bother with a House of Representatives? Even the Senate — composed primarily of multimillionaires living full-time in Washington, DC, is is extravagantly “democratic.”
The Myths Behind the Court
To combat the obvious absurdity of the Supreme Court’s vast lawmaking powers, however, we have invented a number of myths designed to convince ourselves that the Court is not, in fact just another political institution. It is — we tell ourselves — something special. Something non-political.
But, as I wrote in “ The Mythology of the Supreme Court,” the idea of the court as a group of jurisprudential deep thinkers is a tale for little school children:
This view of the court is of course hopelessly fanciful, and the truly political nature of the court is well documented. Its politics can take many forms. For an example of its role in political patronage, we need look no further than Earl Warren, a one-time candidate for president and governor of California, who was appointed to the court by Dwight Eisenhower. It is widely accepted that Warren’s appointment was payback for Warren’s non-opposition to Eisenhower’s nomination at the 1952 Republican convention. The proposition that Warren somehow transformed from politician to Deep Thinker after his appointment is unconvincing at best. Or we might point to the famous “switch in time that saved nine” in which Justice Owen Roberts completely reversed his legal position on the New Deal in response to political threats from the Franklin Roosevelt administration. Indeed, Supreme Court justices are politicians, who behave in the manner Public Choice theory tells us they should. They seek to preserve and expand their own power.
In practice, the Supreme Court is just another federal legislature, although this one decides matters of public policy based on the opinions of a mere five people, most of whom spend their time utterly divorced from the economic realities of ordinary people while cavorting with oligarchs and other elites.
The court’s legislative power is matched by its political power since every vacancy on the court is a gift to the dominant political parties. Every time a justice dies or retires, the event provides political parties with yet another opportunity to issue hysterical fundraising letters to the more monied supporters and demand unqualified support from the rank and file while claiming the SCOTUS-appointment process makes the next election “the most important ever.”
It seems to bother few, however, that we live in a political system where the most important political and economic matters of the day — or so we are told — are to be decided by a tiny handful of people, whether they be the chairman of the Federal Reserve, five Supreme Court justices, or a president with his “ pen and phone.”
Just as it is supremely dysfunctional for a major economy to hang on every word of a central bank chairman, so too should it be considered abnormal and unhealthy for a country of 320 million people to wait with bated breath for the latest prognostications of nine friends of presidents in black robes from their palatial offices in Washington, DC.
The Court Is Just a Group of Nine Politicians in Fancy Robes
We’re told by pundits and politicians from across the spectrum how indispensable, awe-inspiring, and absolutely essential the Supreme Court is. In truth, we should be looking for ways to undermine, cripple, and to generally force the Court into irrelevance.
We ought to point out at every opportunity that the whole notion of judicial review, which is itself a total innovation and fabrication dreamed up by Chief Justice John Marshall. Absolutely nowhere does Article III of the Constitution (the part that deals with the court, and is half a page long) give the court the power to decide on what can be legal or not in every state, town, village, or business of the United States. Moreover, as Jeff Deist has noted, the Court’s powers we so blithely accept as fait accompli are mostly made up:
- The concept of judicial review is a fabrication by the Court, with no basis in Article III.
- Constitutional jurisprudence is not constitutional law.
- The Supreme Court is supreme only over lower federal courts: it is not supreme over other branches of government.
- Congress plainly has constitutional authority to define and restrict the jurisdiction of federal courts.
A Tool of Centralization of Power
But don’t look for many in Washington to admit this any time soon. The Supreme Court serves a very important function in centralizing federal power in DC and in the hands of a small number of senior federal personnel. And how convenient it is for members of the ruling classes to influence and access these guardians of the federal government’s intellectual respectability: the members of the court, presidents, and senators are all generally all members of the same socio-economic class, send their children to the same elite schools, and work and live together in the same small social circles. At the same time, this closed social and professional circle also helps to diminish the influence of those outside the Washington, DC bubble.
The Court in Its Present Form Could be Abolished Overnight
If it wished to, Congress could overhaul the Court this afternoon. Nothing more than simple legislation would be necessary to radically change or completely abolish the lower federal courts. Congress could decide what topics fall under the lower courts’ jurisdiction, and thereby limit the Supreme Court’s jurisdiction as well. Congress could also decide that the Supreme court is made up of one justice or 100 justices.
Indeed, since the Supreme Court is nothing more than a legislature, why not make it one? Why not make SCOTUS a body of 50 “judges,” with the understanding that the Senate will not ratify any appointment which does not hold to the rule that each state gets a judge on the Court? Politics and ideology prevent this, but no Constitutional provision does.
“But the court would just declare all those reforms to be unconstitutional,” some might say. That is true, although to that, we need only paraphrase the (possibly apocryphal) words of Andrew Jackson: “the Court has made its decision. Now let them enforce it.”
The Court need not worry, though, since its can nearly always count on the support of the president and the Congress precisely because the Court serves an essential role in augmenting the power of the other branches of the federal government.
The Solution: Mock the Court and Seek to Undermine It
Far too often we’re told to revere the Court simply because it is enshrined in the Constitution. Slavery is enshrined in the Constitution too. Need we revere that?
Even if the Supreme Court’s current form were actually Constitutional (which, again, it is not) it would still be a obsolete relic of a distant age. The idea that the Supreme Court could somehow address all the legal issues arising in a vast confederation was absurd from the outset, but all the more so now. Recognizing this, the authors of the Constitution created the Court as a body designed to address only conflicts between states, or between individuals of different states. In other words, it was supposed to head off conflicts that could lead to crises between state governments; it was designed to prevent wars between states. Whether or not your local confectioner should bake a cake for gay couples wasn’t exactly at the top of the agenda.
Even in the late 18th century though, the Court’s status as a tiny elite club required the creation of the myth that the court was somehow “apolitical” which was buttressed by the creation of lifelong tenure for judges, no matter how senile or out of touch. Otherwise, prevailing ideas of representation in government at the time would have never allowed for a political institution like the Court to gain acceptance. This can be illustrated by the fact that in 1790, Congress was far more “democratic” than it is now, in the sense that there were far more representatives per person than today. Elections in many state governments were annual affairs, and legislative districts very small by today’s standards, ensuring that your elected officials lived in close proximity to you and were physically accessible.
In contrast to this, in 1790, there was one Supreme Court judge for every 600,000 Americans. Today, there is one Supreme Court judge for every 35 million Americans. Not even the Soviet politburo managed that level of non-representation.
On the other hand, there is no reason why a council of state governments could not be employed to address issues of conflicts between states, and the states (or even small portions thereof) — not nine political appointees — should perform the function of judicial review. This isn’t the 18th century. Having delegates from a variety of diverse and geographically varied states remain in constant contact and regularly meet is by no means a logistical impossibility.
Even worse, many of the justices haven’t had a real job in decades and have no idea how reality actually works. It’s unlikely that the older members of the Court could even use Google to find a phone number on the internet, let alone understand the complexities of how modern people run their businesses, raise their families, or function in every day life. The Court is largely the domain of geriatrics who are paid generously to make complex judgments about a world they rarely engage and can scarcely understand.
If Americans want a government that’s more likely to leave them in peace, they should ignore the pleas to elect another politician who will just appoint another donor or political ally to the court. Instead, state and local governments should seek at every turn to ignore, nullify, and generally disregard the rulings of the Court when they run counter to local law and local institutions where — quite unlike the Supreme Court — average citizens have some actual influence over the political institutions that affect their lives.
About the author:
*Ryan McMaken (@ryanmcmaken) is the editor of Mises Wire and The Austrian. Send him your article submissions, but read article guidelines first. Ryan has degrees in economics and political science from the University of Colorado, and was the economist for the Colorado Division of Housing from 2009 to 2014. He is the author of Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre.
This article was published by the MISES Institute.