Nihilism: the total rejection of established laws and institutions. Much of the modern progressive movement operates with a selective version of this philosophy in its quest to delegitimize institutions it cannot control — hence the recent spate of attacks, rhetorical and otherwise, on the United States Supreme Court as an institution.
In the wake of this vicious campaign, a Marquette Law School poll released on October 3 purports to show that confidence in the Court waned by three percentage points overall since July. The percentage of respondents who think the Court’s decisions are motivated by politics is up 17 percent since 2019, with 64 percent saying that they disagree with the decision to reverse Roe v. Wade (in the midst of widespread misinformation about what that decision and the one that reversed it actually did). And, since 2019, support for the disastrous idea of expanding the Court has risen from 42 percent to 54 percent, if the poll is to be believed.
The Court will decide on some potential blockbuster cases this coming term that could scale back the encroachment of the administrative state into the daily lives of citizens. So we can expect a new round of attacks. It remains to be seen whether this term will evoke the same level of invective as the last.
Whether it was ending the institutionalized racism in university admissions, preventing President Joe Biden’s attempted unilateral transfer of debt from college student-loan borrowers to taxpayers, or stopping the state of Colorado from coercing a citizen into speaking the government’s preferred message, the Court’s decisions in the most recent term certainly raised the Left’s ire. But nothing to date seems to have elicited more vitriol than the opinion in Dobbs v. Jackson Women’s Health Organization.
Critics of the Court use terms like “threat to democracy” and “undemocratic” as an epithetical fig leaf to cover their hostility toward a co-equal branch of government populated with men and women whom the duly elected representatives of the people nominated and confirmed. To set aside the irony of criticizing a decision like Dobbs, which returned abortion lawmaking to elected legislatures, as a threat to democracy is itself a Herculean task. But in attempting to smear the Court itself as undemocratic, its critics have haphazardly staggered toward a truth: While the Supreme Court was democratically formed, it is not a democratic body and was never supposed to be. We can thank God and the Founding Fathers for that.
Even a cursory glance through the published writings and correspondence of the Constitution’s Framers reveals a deep mistrust of the tyranny of the majority. As Benjamin Franklin is said to have quipped, “Democracy is two wolves and a lamb voting on what to have for lunch.” Justices of the Supreme Court are given life tenure and are not subjected to election or reelection to insulate their analysis and decision-making from the ever-shifting winds of public opinion. Their ultimate duty is to the Constitution and its proper application, not to placate the will of a notoriously fickle voting population.
In fact, if the will of the people, expressed through their elected representatives, conflicts with the Constitution, it is the obligation of the Court to say “no.” The same document that established this check against the authoritarian impulses of the majority also created democratic processes whereby the people can remain a check against a potential oligarchy of jurists.
After the Civil War, the 13th Amendment to the Constitution was ratified to abolish slavery in America forever. In doing so, the voice of the people issued the sternest rebuke to the Supreme Court in our nation’s history, forever transforming the Dred Scott decision into a stark reminder of judicial fallibility.
More recently, the voice of the people was heard through the legislative process in response to the Court’s decision in Employment Division v. Smith. Championed in the U.S. House by then-representative Chuck Schumer and in the U.S. Senate by Ted Kennedy, the Religious Freedom Restoration Act passed with near unanimous support. President Bill Clinton signed the law, which strengthened protections for religious liberty that the Court’s decision had weakened.
The Rolling Stones once exhorted, “You can’t always get what you want, but if you try sometimes, you just might find you get what you need.” If the American people can’t get what they want from the Supreme Court today, the answer is not to delegitimize the institution, subordinate it to the other branches, or pack it with judges to make outcomes more in tune with public polls than the Constitution.
The answer is to persuade — to spur enough of our fellow citizens and elected representatives to action via legislation or amendment. This requires civil discourse, reasoned debate, and compromise in order to build enough popular support for an idea to see it enacted through the democratic process . . . which we just might find is what we need.