American democracy has always been messy, rough and unruly. The political process has suffered under rampant manipulation, cheating and corruption. Even so, democracy has delivered and made America not only the world’s supreme power but also its lighthouse socially and culturally. Today, by common consensus, the American political system is dysfunctional and Washington bogged down in gridlock. This week's series of articles by Stein Ringen explores the state of democracy in America, covering gerrymandering and electoral fairness, presidential power and the use of signing statements, court activism and the Supreme Court, the incapacity of Congress, and the health of democracy overall.
The argument of these articles is that the present predicament is new. Dysfunction strikes deeper than good old rough politics. It is not only a matter of disorder in Congress, the presidency and the Supreme Court. Beneath is a problem of power. The disorder that is visible in governance is a result of power being sucked out of the constitutional system and of a political culture that has abandoned inclusiveness and fairness. In a recent interview in London, Hillary Rodham Clinton said (in a matter of fact way), “our democracy is not working” (with Channel 4 News, on July 4 no less). If so, is the consequence not only dysfunction in Washington but also decline for America?
The trouble with courts is that when they get a taste of power they want more of it, and when they have won power it is difficult to claw back. That’s the story of the Supreme Court.
Court activism is a vice. Courts are activist when they are prone to hearing cases that do not need to be heard, when they are prone to deciding cases with a systematic bias, or when they are prone to using cases to rule more broadly than necessary in the case.
There are two great divisions among the Supreme Court’s nine justices. One is between conservatives and liberals. That division now pretty regularly splits the Court 5 to 4 with a conservative majority. The other division goes to activism versus restraint. This division is less clear cut, but there is only one consistent voice among the current justices for restraint, that of justice Ruth Bader Ginsburg. The two most recent appointees, Sonia Sotomayor and Elena Kagan, are in the liberal minority but probably in what may be an activist majority of 8 to 1.
It is a problem in American governance that the Supreme Court sits as clearly on one side of the political divide as it does now, but it is a more serious problem for American democracy that it is ultra-activist. Liberals are wrong to put their hope in a future activist Court with a liberal majority. They should be concerned to restrain the Court whatever its majority.
The present Supreme Court is activist in all three meanings of the term. It accepts cases that it should not take on, it is systematically biased in its rulings, and it rules more broadly than it needs.
All these defects were on display in the infamous Citizens United case in 2010. The case concerned the right of a group called Citizens United to air ads for an explicitly partisan political film during the primary election campaign, something it had been prevented from doing on the argument that the film itself had the appearance of a long campaign ad and should therefore be regulated as such. That ban had been upheld in lower courts but was overturned by the Supreme Court with a 5 to 4 majority. However, the ruling of the Court went beyond the case itself to affect a wide range of existing legislation that had not been put before it and that it did not need to rule on in order to decide the case. The majority grasped an opportunity, redefined the issue, swept away one hundred years of legislation, and made new law of its own will. (Corporate political contributions were first barred in 1907, under Theodore Roosevelt’s presidency.) The ruling was criticised from within. Then justice John Paul Stevens, of the minority, criticised the majority on both the ruling and procedure: “Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case so as to give themselves an opportunity to change the law.”
This was not a one-off. In a ruling on April 2 this year, the Court struck down upper limits on campaign contributions that had been in place since the Watergate era, again with a 5 to 4 majority. This was the fifth decision of the Court since Chief Justice Roberts joined it to remove regulations on the use of private money for political purposes.
One thing is that these decisions of the Court are objectionable and ill argued, as I think they are, but what matters more for the present argument is that they are of a kind that the Court should not make. These matters had been resolved in lower courts according to prevailing law and should have been left at that. The Supreme Court for reasons of its own took them on and then proceeded not to apply the law but to overturn it. It is not so much that the Court takes on too many cases. It typically accepts 100 – 150 of the 7 to 10 000 petitions it receives annually. The problem is that cases that should not be taken on may slip through too easily.
The Court’s series of decisions in the matter of money and politics has changed not only the law but the America’s constitutional system. They represent a slow coup d’état against the constitutional division of powers by a Court that has cast aside restraint. The Court feels free to easily disregard Congress’s laws and has elevated itself to lawmaker. It is supposed to protect American democracy but is pedantically obsessed with non-existing rights of its own imagination without noticing that their promotion is contrary to its raison d’être. It acts like a fire brigade called out to put down a forest fire that ignores the fire and turns to the protection of its source.
Abraham Lincoln's inauguration 4 March 1861/United States Library of Congress/Public domainThe Constitution gives the Supreme Court the power to check the constitutionality of laws and the way they are practiced. This is a good safeguard in the constitutional system, but one that, like so many constitutional provisions, need to be managed with care if it is to work well and as intended. The dilemma of an overpowering Court was captured by President Lincoln in his first inaugural address, with his customary eloquence: “I do not forget that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding. At the same time the candid citizen must confess that if the policy of the government, upon vital questions, is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers, having, to that extent, practically resigned their government, into the hands of that worthy tribunal.” In this meaning, the American people have now ceased to be their own rulers. The position the Supreme Court has attained is, said the late Professor Robert Dahl, the pre-eminent American expert on democracy, an “aberrant aspect of the American constitutional system” (and that was in a book published in 2001, since when the Court has become ever more activist).
There are many things that could and should be done to restrain an activist Court, and we shall return to that in the next article. However, even if the Court were given better working orders, no set of rules could make a court restrained if its members were determined to be activist. If the Court is to function in a balanced way in the constitutional system, the justices must want it to work in that way. They would need to be guided by a culture of caution. A good Court would see itself as a careful custodian of constitutional probity. There would be a default assumption that laws made correctly are constitutional and that it should take very strong and exceptional grounds for overturning a law of Congress or for ruling in a way that goes against the spirit of existing law.
The constitutional system is made up of what the Constitution says and how, over time, people have come to think about the Constitution. The position the Supreme Court has attained is not prescribed in the text but is a result of how politicians and the public have come to think about it. The “aberrant” Court serves to illustrate the importance of culture. American political culture is now so adversarial that everyone cares about themselves – their interests, their standing, their power – while no one cares about the dignity and workability of the system itself.