My Fascinating Topic

Yesterday, I had coffee with a colleague. I got to talking about my book project, which I haven’t done any work on for about three months. Packing up my family’s belongings, moving, and setting up shop in Seattle has taken up most of my time. Now, finally, writing is once again becoming a priority. And so I’m once again ruminating on my topic, getting up a head of steam, taking notes all the time.

Yesterday, I announced to this colleague—and to myself—that my goal is to explore how Christian conservatives of the 1980s thought about democracy in America, and especially about the role of the Supreme Court. I don’t believe that I ever before said this so plainly. I’ve known for some time that this is one of the underlying issues with which my project wrestles, but yesterday I found out that this is perhaps the issue.

This got us wondering what Americans today think about the Supreme Court, and whether they even think about it at all. Do most Americans care about the Court? Do they reflect much on judicial review (the Court’s right to declare laws unconstitutional and thereby strike them down)?

The vast majority of my friends and colleagues are liberals or lefties. To the extent that they think about the Supreme Court, they tend to consider it (at least during its recent decades) as merely a shill for the very wealthy. Generally speaking, the left today believes that the Court obstructs the will of ordinary Americans and instead services the interests of the rich and powerful. As such, the Court provokes the ire of liberals and radicals. They point to campaign-finance decisions such Citizens United and McCutcheon as proof that the Court functions primarily to stamp with approval wealthy people’s attempts to buy the political process. Others on the left seize on decisions such as Hobby Lobby as evidence that the justices care more about a particular subculture’s religious convictions than about the majority’s right to affordable health care. In these and other ways, the Court appears to those on the left largely as a roadblock to democracy, an institution that frustrates the will of the 99 percent.

Citizens United v. FEC (2010) 

McCutcheon v. FEC (2014) 

Burwell v. Hobby Lobby Stores (2014) 

What is fascinating about this is that, for years, conservatives issued similar denunciations of the Court. Rulings on desegregation, abortion, school prayer, the voting rights of racial minorities, and the civil rights of criminal suspects, all suggested to conservatives that liberals had captured control of the entire federal court system and used it to override the will of popular majorities. Critics on the right accused the justices of “judicial activism” and “judicial overreach.” Such critics abounded in states where popular majorities expressed conservative values. They accused federal judges—unelected political elites frequently from outside the state—of callously disregarding local customs and statewide policies. So unpopular was the Court among conservatives that, during the 1950s and 1960s, billboards exclaiming “Impeach (Chief Justice) Earl Warren” could be seen along many roadsides. 

Ours is a political system where laws are passed by representatives voted into office by popular majorities. Within that system, the authority wielded by federal judges—unelected public officials—constitutes a anomaly of sorts. This was recognized in 1962 by constitutional scholar Alexander Bickel, who labeled judicial review a “counter-majoritarian difficulty” in American democracy.

Bickel's "Counter-Majoritarian Difficulty"

At various times, different parts of the American electorate have felt frustrated by the Court for exactly this reason. Those who at any time dislike the Court’s current political orientation denounce it as an obstacle to self-rule by “the people.”

To the extent that people think about the Supreme Court, they tend to think about it as a problem, something whose power and influence need to be stemmed. This may or may not be inevitable, given that nobody votes the justices into power, and so few people develop any loyalty to them. Either way, judicial review provides a permanent source of displeasure and frustration. This is not a recipe for satisfaction with our larger political system.

I suppose I have an interesting book topic.