The Evils of Supreme Court Democracy (Part IV)

In 1954 in Brown v. Board of Education the Court finally overruled Plessy and ordered that racially segregated schools were unconstitutional. This ruling was labeled the “counter-majoritarian difficulty” since the decision defended a minority group. Our Constitution was designed precisely to address the majoritarian difficulty by limiting the power of the federal government as well as putting in place checks and balances. For instance, In Gibbons v. Ogden Chief Justice Marshall specifically outlines some specific state powers that cannot be encroached by the federal government: inspection laws, quarantine laws, health laws, and transportation laws. The Court’s interpretation of the commerce clause in the FDR administration has allowed the federal government to control all economic issues regardless as to whether they are interstate or intrastate (consider the 1941 ruling in Wickard v. Filburn). The Rehnquist Court limited some of the commerce clause power of the federal government by drawing the line between economic and non-economic issues in the cases: United States v. Lopez and United States v. Morrison. These cases limited the federal government’s scope over guns and local crimes.

Once the federal government becomes too big, as Madison rightly points out in Federalist 10, the number of factions will grow. For instance, our country is divided over a plurality of issues that should not be of any federal concerns: abortion, gay marriage, death penalty, sex, and so forth. The federal government is creating winners and losers over social issues when the Supreme Court makes the final decision to legislate from the branch. National level fights over so many controversial issues creates a polarization that leads to gridlock. A one size fits all federal regulatory scheme is detrimental because it limits federalism and hence, individual sovereignty. States with different laws over social and economic issues allows people to move to a state that fits their ideology. When the federal government encroaches on federalism, it denies individual sovereignty. The Federal income tax allows the government to coerce states into participating in programs such as welfare denying more power and sovereignty from the people and states. Federalism is not just a conservative issue. In 2005 the case Gonzales v. Raich, the Court held that a California law allowing people to grow marijuana for medical use to be unconstitutional. Why are citizens with real medical problems prohibited of pursuing a life without pain? Why must the government intrude over a state issue?

There are other techniques the Federal government uses to grow its power by limiting the separation of powers. One such method is the establishment of agencies that have the power to make laws instead of Congress. Consider the EPA’s crippling regulations on businesses as just one example. More agencies also expands the federal government’s spending power. Under this system of rule, the constitution’s checks and balances no longer exist to protect the liberty of individuals but to protect those who want to control liberty of individuals. The Supreme Court has looked the other way to unconstitutional federal agencies saying as long as it is an “intelligible principle”, it would be allowed. Another method to avoid the separation of powers is rolling spending bills of individual departments and agencies into one omnibus spending bill. If the legislature would oppose such a bill, it would create the dilemma of shutting down the government. The omnibus is a method of coercion to limit Congress’s ability to control spending in any matter. Supreme Court judicial restraint and deference provide the executive and legislative branches too much power. For instance, in the 1984 case between Chevron v. Natural Resources Defense Council the Court deferred to the EPA’s interpretation of the law unless their interpretations were unreasonable. Judicial restraint is a concept practiced by Justices where they hesitate to strike down laws unless they are obviously unconstitutional. Using Judicial Restraint the Court has also used unreasonably broad interpretations of the Necessary and Proper Clause, the Spending Clause, and the Commerce Clause to justify unlawful legislation. The Court also uses substantive due process (using the Fourteenth amendment “due process” clause) to wrongly elevate the status of some fundamental rights such as the “liberty of contract” (Lochner), “the right to privacy” (Griswold), “the right to an abortion” (Roe), and “the right to gay marriage” (Obergefell). Instead, the Court should rule on the rational or arbitrary nature of the law to prove if it is proper or just. What the Court has viewed as rational and non-discriminatory in the past has been found to be irrational and or discriminatory later on: Carolene Products, Lee Optical, Plessy, Cruikshank, Bradwell, and so on. This is what happens when the court uses majority rule. Still, today, most justices adhere to the philosophy of upholding any legislation that may have any hypothetical reason for its passing as Justice Douglas said “the law need not be in every respect logically consistent with its aims to be constitution”. Hence, the need for a law to be “rational” was removed from the equation. Douglas also stated that “The legislature may select one phase of one field and apply the remedy there, neglecting the others.” Therefore, the need for the law to be non-discriminatory is also removed from the equation. In other words, a judge merely needs to conjure up some imaginary reason for a law for it to be upheld. Today, the Court usually conjures up some “fundamental right” or selectively identifies a “suspect class” of people deserving special protection. Of course the Court only recognizes fundamental rights when they are popular (majority rule) and suspect classes are only recognized when they are politically influential. The Court also invented what is known as the Dormant Commerce Clause (Nebbia v. New York) where the Court can encroach on State police power even over non-federal issues. The President can move unilaterally with executive actions to pass things that should go through Congress such as comprehensive immigration reform. Under such a system, the federal government has become “legislator, judge, and executioner of its own prerogative powers.” As Madison rightly explains in Federalist 10, such a situation of government would be “corrupt”.