Carl von Clausewitz, the brilliant 19th-Century Prussian military strategist, famously said, “War is not merely a political act, but also a political instrument, a continuation of political relations, a carrying out of the same by other means.” In other words, politics is the true war. Actual combat is a subset.
Something similar can be said about the Supreme Court. The decisions of the Court are merely legislation by other means. Whether the Court crafts a solution like the Roe v. Wade Section X trimester test or they strike down campaign finance regulations, they are changing the law in ways that the Congress proved unwilling and incapable of changing on their own.
In the middle of the 20th-Century the country faced some intractable problems that could not be decided one way or the other by our legislature. Most prominent was Jim Crow, but also equality and bodily autonomy for women, and the role of religion in our increasingly secular and diverse nation. The Court stepped in to the breach and decided these issues in ways that aroused the enduring wrath of social conservatives. Furious at what they perceived to be “legislating from the bench” the social conservatives set out to remake the federal judiciary. And they have largely succeeded. The irony, of course, is that they, all along, wanted to gain control of the Supreme Court so that they could do their own legislating from the bench. And that is what the Roberts Court is beginning to do now. Here’s how E.J. Dionne puts it:
…Kagan did lay out a clear judicial philosophy that (1) sees courts as having an obligation to defer to the choices of elected officials except in the most extreme cases and (2) puts the lie to Chief Justice John Roberts’s notion that judges are mere “umpires,” as if their task was, in Kagan’s cutting word, to be “robotic.” And it was Republican senators who seemed to be begging her to be a judicial activist and overturn the enactments of Congress. Thus did Sen. Tom Coburn ask her whether she would rule against a law requiring Americans to eat a certain number of fruits and vegetables.
“Sounds like a dumb law,” Kagan replied, and then she spoke admiringly of Justice Oliver Wendell Holmes who “hated a lot of the legislation that was being enacted” in the early years of the 20th century “but insisted that if the people wanted it, it was their right to go hang themselves.”
“Judges,” Kagan declared, “should realize that they’re not the most important people in our democratic system of government.” It’s a line that might usefully be engraved on a wall of the Supreme Court building.
Yes, Republicans seemed to be admitting implicitly, it is conservatives who are now the judicial activists. That’s why they moved on during last week’s hearings to a new attack line against liberal jurists as being “results-oriented.”
But, of course, all sides are “results-oriented” when it comes to the rulings of the Supreme Court. Whether it rules one way or another is based on which party appointed more of the Justices. Fifty, sixty years ago, progressives used the Court to push civil rights because Congress was never going to get to it on their own without a big push from the Judicial Branch.
Today, the Republicans rely on the Court to make rulings that would never, ever pass through Congress. The Court became thoroughly politicized because of the failures of Congress. And one of those failures is of organization. When the Senate is governed by the minority rather than the majority, the will of the people can find no light outside of the Court. Of course, in the Republicans case, the changes they want to make are not supported by even a majority.
