Constitutional Opinions

Put Not Your Trust in Judges

Conservatives shouldn't look to courts to fix political problems.

By 8.18.14

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I’m old enough to remember the “Impeach Earl Warren” bumper stickers. They were produced by the hard-right John Birch Society, and most people thought them kooky. Still, they reflected the way many conservatives felt about the then-Chief Justice of the Supreme Court 50 years ago, and the federal bench generally. The courts had expanded the rights of alleged criminals, struck down voting barriers and mandated school busing, and all this went down hard with conservatives.

Times have certainly changed. Now it’s conservatives who look to the courts to fix our political problems. Last month the District of Columbia Circuit Court of Appeals struck down a crucial portion of the Affordable Care Act (“Obamacare”), and if that decision sticks it’s going to increase drastically the premiums people have to pay. That in turn would lead to tremendous pressure to repeal the law, and that’s just what conservatives want. The decision itself was a well-reasoned analysis of a poorly drafted law, but the case was brought by conservative activists who sought to torpedo a law they opposed.

Count me as one conservative who doesn’t buy it. Courts should not be asked to resolve political issues, and for two reasons conservatives should know this. First, the strategy is self-defeating, since judges will likely be nominated by Democratic presidents for the foreseeable future. Conservatives might seem to enjoy an advantage today, since Republican presidents have nominated judges to the bench for 20 of the last 33 years, including five of the current members of the Supreme Court. But that’s not how we should expect presidential elections to be decided over the next 33 years.

Second, using courts to advance political ends subverts the rule of law. Rich, free countries enjoy a robust rule of law and Third World departures from it have left people impoverished and their liberties circumscribed. What the rule of law requires is a barrier between the judicial and the political, and this in turn requires a judiciary with enough political sense to recognize when it is being asked to decide a political question. When, as in Venezuela, a deeply partisan Justice Department prosecutes only conservatives, and this for the most technical of offences, courts are called upon to blow the whistle. And when, as in America, political activists turn to the courts to advance political goals, courts should hesitate before being drawn into the dispute. That was what John Roberts meant when, during his confirmation hearings, he described the ideal judge as an apolitical umpire.

Today the enemies of the rule of law include conservatives who would cheer a court that overturns the precedents they find troubling, on abortion, same-sex marriage, affirmative action, and so on. Politically, this isn’t about to happen. What is more likely is a Supreme Court overturning the decisions to which liberals object, such as Hobby Lobby, when their side enjoys a majority on the Supreme Court, as it will before long. The Supreme Court does not consider itself bound by its prior decisions, and has veered about so freely that one might even wonder whether American constitutional law deserves the appellation “law.” After all, should Justice Scalia fall under a bus, we’d have a brand new kind of constitutional law. If you can call it that.

The person who had it right was John Roberts, in the 2012 Obamacare decision. Political issues should be decided by the voters, he ruled, and not by the courts.

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About the Author

F.H. Buckley is Foundation Professor at the George Mason University School of Law and author of The Once and Future King: The Rise of Crown Government in America.