Inside the constitutional apocalypse on the horizon

Alexander Hamilton explained in Federalist No. 78 the rationale for the Founding Fathers giving judges the power to strike down laws enacted by the legislature. He said the following:

The courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

What Hamilton did not anticipate was that much of the Constitution's imprecise language, such as the text of the First and Second Amendments, would be applied by future judges to a constantly changing society. He likely thought the very heavy burden of proof he was placing on those challenging laws (plaintiffs must show an irreconcilable variance between a statute and the Constitution) would keep judges in their place. But, of course, he was wrong, and starting in 1857 with the infamous Dred Scott decision, the justices have been striking down laws at a rate and, in important cases, in ways that few Founding Fathers, especially Hamilton, anticipated.

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In most of these cases, the court is not acting as an agent of the people or the enforcer of a supreme law, but the creator of constitutional rights and limits that simply do not follow from the constitutional text or its history. Dred Scott, The Civil Rights Cases, Lochner, Reynolds v. Sims, Roe, Heller, Shelby County, Seila Law, Trinity Lutheran, Bruen, and SFFA v. Harvard are just a few examples of many country-changing decisions where there is no available argument that the laws invalidated were at an "irreconcilable variance" with the Constitution. Liberal, conservative and moderate justices have all invalidated major legislation without serious and persuasive grounding in the text or history of the Constitution.

And now we have what might be the most important Supreme Court term in American history. The justices have to decide cases concerning presidential immunity (which might be directly relevant to the next presidential election and the very existence of our democracy), gun control, abortion, state regulation of social media, administrative law and the death penalty, among other important cases. (Obviously, a ruling granting Trump immunity would be catastrophic for the country and the court. I do not expect that to happen.)

But how the Roberts court handles the rest of the term will likely impact America in a dramatic and controversial manner. If the Roberts court continues on its partisan course, and decides these cases like Justices Alito and Thomas prefer, meaning the major consideration is always the values promoted by the Republican Party and the Federalist Society, we are heading towards a June that may damage our country considerably, perhaps beyond repair. The current partisan imbalance on the court is taking such an extreme form that it is difficult to find historical analogues.

During the Warren and early Burger court's liberal period, for example, the justices issued numerous landmark opinions that were extremely conservative. For example, in Brown II, the justices told the country to move with "all deliberate speed" to end segregated schools, but that turned out to be almost no speed at all. In 1963, nine years after Brown, Southern schools were still about 98 percent segregated.

After a very short period of judicially imposed desegregation rulings during the late 1960s and early 1970s, the court effectively ended serious efforts to desegregate public schools by saying states did not have to cure segregation not caused directly by formal state laws. But centuries of legal slavery, segregation and red-lining caused segregated housing patterns. To the majority of justices, too bad, so sad. To poor Black Americans, this hands-off attitude was and is a tragedy, dooming many of their children to poverty and racially imbalanced public schools.

In 1959, the court upheld literacy tests for voting. In 1961, the court upheld Sunday closing laws against a religious clauses challenge. These were important conservative decisions.

Skipping ahead a few years, the year the court decided Roe, the justices rejected efforts by liberal groups to classify public school education as a fundamental right and to make poverty a suspect classification for equal protection purposes. The rejection of these efforts had major negative impacts on the poor and people of color.

And in perhaps the most under-appreciated case in American history in terms of its impact, during this period the court also held that plaintiffs must prove intentional discrimination to win an equal protection clause case – a racially disproportionally impact, no matter how large, is not enough. The effect of this holding was to answer 400 years of legally allowable racism with a shrug and say racial impacts alone do not justify judicial intervention. But racially neutral laws in a country with our sordid history lead directly to more racial inequality on the ground. Few lawmakers, even in the Trump era, are foolish enough to leave a trail of intentional racism.

As Professor Justin Driver has said so well, the "scholarly attention lavished upon liberal achievements has regrettably obscured how constitutional conservatism significantly shaped the Warren court era. Examining those underappreciated instances where liberal victories were attainable, but the court declined to deliver, should bring the Warren court into a sharper historical focus."

Although the Rehnquist and early Roberts courts issued some important liberal decisions, those days are over. Since Justice Kennedy retired and Justice Ginsburg passed away, the Roberts court has been on a conservative rampage, overturning Roe, turning the Second Amendment into a super-charged destroyer of reasonable gun reform, ending affirmative action, greatly strengthening the free exercise clause, ignoring and/or distorting the establishment clause, and trying to return to a libertarian, pre-New Deal understanding of the administrative state.

In other words, the justices in a very short time have implemented a substantial part of the Federalist Society's most important policy agenda. Although there have been a handful of moderate decisions, there have been no liberal victories remotely comparable to the Warren and Burger court’s conservative decisions described above. In short, there is no balance at all.

A few years ago, I wrote that the court should return the issues of abortion, affirmative action and gun control to the political process. My personal philosophy about judicial review goes all the way back to Hamilton. The justices should not overturn laws absent clear constitutional error – meaning an irreconcilable variance between a law and the Constitution. That regime, if faithfully implemented, would give me both losses and defeats, given my own values, and I can live with that. I think most Americans could live in a country where they get their way or not based on voting (assuming fair elections). But Americans have a hard time, and they should, being told what to do by elite judges based on their values and politics, not the text and history of the Constitution.

The justices might or might not be sensitive to these concerns. My best guess is that they think they can run the table on their own politics as long as they deny Trump immunity. But I think that reasoning is likely to backfire. There's a constitutional apocalypse on the horizon, and I do not expect We the People to take it lying it down.

(Editor’s note: This piece first appeared in Dorf on Law, and is reposted with permission.)