According to many observers, the Supreme Court is struggling to do its job. It is "diminished," "hobbled," perhaps even "crippled." The death of Justice Antonin Scalia has left the country with an eight-member Court that split 4-4 in an important case involving forced public-employee contributions to unions and may split in other high-profile, politically controversial cases as well, leaving the state of the law (as construed by the highest court in the nation) unsettled. There is no indication that the void left by Scalia's absence will be filled anytime soon. Senate Republicans have firmly adhered to their commitment not to hold hearings or vote whether to confirm Judge Merrick Garland, who President Barack Obama nominated to replace Justice Scalia.
In a recent New York Times op-ed, Professor Barry McDonald argues that we should not be "overly trouble[d]" by this state of affairs. Professor McDonald claims that a Court that decides fewer consequential cases may actually be more consistent with the Framers' vision than a Court that resolves "many politically charged and contestable questions." Specifically, he avers that "the judicial branch was something of an afterthought for [the Framers], because they believed that in a democracy the elected branches would be responsible for governing the country." Accordingly, McDonald advocates "restraint in deciding important issues of constitutional law" and expresses hope that an eight-member Court will avoid "bold, sweeping and highly debatable proclamations about the meaning of the Constitution."
Professor Michael Ramsey and Professor Vikram Amar have made powerful--to my mind, persuasive--arguments that the Senate has no constitutional duty to hold hearings or vote on the Garland nomination. But the eight-member status quo cannot be defended on the grounds advanced by McDonald. McDonald proceeds from false premises about the Constitution's substantive mission and the constitutional role of the judiciary, and he arrives at conclusions that are incompatible with judges' constitutional duty.
Professor McDonald's analysis is driven by what I have referred to as the "myth of majoritarianism"--the belief that the Constitution's primary substantive mission is the facilitation of majority rule. Gallons of scholarly ink have been spilt in the course of efforts to reconcile the Constitution's purportedly majoritarian character with the existence of an independent judiciary, staffed by unelected judges who are empowered to give authoritative expositions of law that bind elected officials. The myth of majoritarianism is responsible for an enduring academic obsession with the "countermajoritarian difficulty" that judicial review supposedly poses in a majoritarian democracy.
Although it has many adherents, the myth of majoritarianism is both false and pernicious. The Constitution authorizes and circumscribes government power in order to protect individual rights from the minoritarian tyranny of the few and the majoritarian tyranny of the many. No more does the government created by "We the People" have the authority to deprive individuals of the "blessings of liberty" that (according to the Preamble) the Constitution was "ordain[ed] and establish[ed]" to "secure," than does the Declaration of Independence, by stating that governments derive their "just powers" from the "consent of the governed," confer legitimacy upon governments that systematically violate "unalienable rights." The Constitution's mission of rights-protection is evident in both its explicit protections for individual rights and its structural limits on democratic decision-making, which create numerous chokepoints through which legislation must pass and which serve to prevent any government entity from attacking individual rights unopposed.
Once we understand the function of the Constitution's architecture, we can appreciate how an independent judiciary serves as its keystone. The lack of a "known and indifferent judge" to give effect to "an established, settled, known law" was among the principal defects that John Locke identified in the "state of nature" absent government. People in the state of nature act as judges in their own cause--and because people are "biassed [sic] by their interest[s]," the danger that one's life, liberty or property might be taken away through force backed only by will leaves individual freedom "very unsafe, very unsecure [sic]." Far from being an "afterthought," the establishment of an independent judiciary was prompted by a perceived imperative to ensure that a "known, indifferent judge" stood ready to (as Alexander Hamilton put it) "guard the Constitution and the rights of individuals."
As Professor Philip Hamburger has demonstrated, the judicial duty to exercise independent judgment--judgment free from the influence of either internal or external will--and give effect to the law of the land, even if that means invalidating assertions of government power, was not invented in Marbury v. Madison. It was a component of an ideal can be traced back through hundreds of years of Anglo-American law. In 18th-century America, it was an ideal with decidedly countermajoritarian implications. The principal threats to liberty in 18th-century America came not from the executive but from state legislatures and popular majorities that (as Hamburger explains) "repeatedly threatened the freedom of various racial, religious, political, and propertied minorities." It is telling that "Anti-Federalist" opponents of the proposed, unamended Constitution expressed concerns that federal judges would be less willing to oppose unconstitutional acts than state judges, who had shown their "firmness to counteract the Legislature in some cases."
By authorizing "The judicial Power" and vesting it exclusively in "one Supreme Court, and in Such inferior Courts as the Congress may . . . ordain and establish," Article III of the Constitution incorporates the duty of independent judgment as an essential feature of the judicial office. Judges who draw their power from Article III must evaluate politically controversial assertions of government power to determine whether they are consistent with the law of the land and invalidate them if they are not. The question is thus how judges should evaluate such assertions of government power, not whether they should do so. More specifically, the question is whether they have a duty of judicial engagement--a duty to impartially pursue the truth concerning the lawfulness of the government's true ends and means, without deference to government officials' beliefs, desires or unsupported factual assertions--or whether they should systematically defer to the government in some (or perhaps all) cases.
The duty of independent judgment imposed upon judges by Article III, as well as the Fifth and Fourteenth Amendment's guarantees of due process of law, forbid systematic judicial deference to the government. The duty of independent judgment--judgment free from will--is incompatible with systematic deference to the will of one party in a given dispute when that party (here, the government) seeks to impose its will upon the other. Failure to exercise independent judgment has the effect of depriving the party challenging an assertion of government power of due process of law. Due process of law requires not just any kind of decision-making process but a process that is impartial, grounded in reliable evidence and governed by the applicable legal principles. A judge who understands him or herself to be obliged to defer to the government is necessarily partial to the government.
Further, the experience of the last several decades has demonstrated that systematic judicial deference is a recipe for constitutionally unconstrained government. Court-fashioned doctrines of judicial deference have enabled federal executive agencies to wield regulatory power over what often seems like every facet of our lives; state licensing boards to impose protectionist restrictions on myriad harmless occupations, from floristry to eyebrow-threading to African hair-braiding; and land-hungry developers to bulldoze working-class homes for "economic development." Owing to the fact that the default standard of review in constitutional cases, the "rational-basis test," has been described by the Supreme Court in terms that when taken literally confer an effectively irrebuttable presumption of constitutionality upon assertions of government power, the only constitutional contexts in which government power is subjected to meaningful judicial scrutiny are those in which one of a handful of rights that the Supreme Court has deemed "fundamental" are burdened or which involve the targeting of "discrete and insular minorities." Wherever we find it, systematic judicial deference has enabled government officials to exercise arbitrary power--power that rests upon the mere will of those who hold it, rather than any constitutionally proper reason.
Thus, proponents of constitutionally limited government and individual freedom should reject McDonald's case for a Court that steers clear of controversy. Regardless of its composition, the Court cannot perform its constitutional function and its justices cannot discharge their constitutional duty without carefully and conscientiously evaluating controversial assertions of government power over private citizens. The Court must not avoid controversial cases nor meekly defer to the will of government officials in resolving them. Anything less than consistent judicial engagement is a betrayal of the people's trust.
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