President Donald Trump’s nomination of Neil Gorsuch to fill the late Antonin Scalia’s Supreme Court seat is bound to provoke yet another political brawl. The conventional wisdom is that this is a bad thing. The increasingly bitter fights over the High Court are a sign that our system of government has become dysfunctional. We should instead strive for a sober, muted process, devoid of grubby political considerations.
This conclusion could not be more wrong. The Supreme Court occupies a strange place in our system of government, bridging the gap between the liberal tradition of individual rights and republican tradition of majority rule. What happens to the Court when it does a bad job? Very little, for it is largely immune from popular influence. A Court vacancy is a rare exception to this rule—a moment when the people may influence how the judiciary behaves. It’s no surprise that we bicker with each other over how best to do that. There is nothing wrong with such a dispute—on the contrary, it is essential.
Today, the Supreme Court claims for itself the final authority on the nature and scope of our individual rights—not just from incursions by the federal government, but by states and localities. This is not the role the Founding Fathers intended. While most of them surely would have admitted that judicial review would be part of its job, they never envisioned the Court being the final arbiter on such controversies. After all, the Bill of Rights was inserted into the Constitution only after ratification, to appease the skeptics worried that the new government would run roughshod over individual liberty.
Even after the Bill of Rights was enacted, the Court was not initially viewed as its defender. When President John Adams imposed criminal penalties upon political opponents who belittled his administration, Thomas Jefferson and James Madison turned first to the state governments and ultimately the people to vindicate the First Amendment. They deemed the Court, at this point packed with Adams’s Federalist allies, part of the problem.
But times change, and institutions evolve. Now the Supreme Court applies its understanding of our personal liberties not only to the federal government but also the states. While this role is inconsistent with the intent of the Founding Fathers, it gradually emerged over the years as a reasonable, albeit imperfect resolution to the inherent tension of our liberal republic.
In a republic like ours, the people are supposed to govern themselves, according to the principle of majority rule. The country is also committed to liberalism, in the classical sense of the term: As the Declaration of Independence avers, governments are instituted among men to protect our God-given rights. So the people are sovereign, but there are moral limits to this authority.
That raises the thorny question: how to stop a popular majority from treading upon the rights of a minority. At the Constitutional Convention, Madison proposed an extended republic, which would carefully balance and check the various social factions, thereby protecting individual rights and promoting the general welfare. He thought this “was the only defense against the inconveniences of democracy consistent with the democratic form of government.”
His contemporaries did not buy this argument. The small states insisted on equal representation in the Senate, and during the ratification conventions, skeptics of the new government called for an explicit enumeration of inalienable rights, which became the basis for the Bill of Rights. As the amendments lack any clear enforcement mechanism, the Court eventually stepped into the vacuum. Contrary to Madison’s original proposal, the Court has become the final guardian of the liberal tradition from the “inconveniences of democracy.”
In many respects, the Court is suited for this role. Of the three branches of our government, it is the most immune from the ebbs and flows of the public mood, so its members can divine what our God-given rights are without worrying about losing their jobs. Yet this solution is not without costs. There is a reason why Madison did not want to invest a permanent authority, like a king or House of Lords. Sure, he admitted, it may protect the minority from a capricious majority, but it may just as well facilitate the aggressors or turn against both sides. In such circumstances, there is precious little recourse for the people. When you immunize an institution of government from the people, you give its members license to do as they please.
Even a cursory review of the Court’s history vindicates Madison’s anxiety—for time and again it has not so much protected public liberty from aggressive politicians, but rather imposed its own, controversial notions of morality upon the people. In Dred Scott, the Taney Court invalidated the Missouri Compromise, hastening the Civil War. During the Gilded Age, the Court was devoted to the principle of laissez-faire and struck down a raft of state regulations of businesses. The modern Court has been eager to take sides in the ongoing culture war. Liberating the Court to do as it wishes provides a safeguard for our God-given rights, but it also endows a largely undemocratic branch with power to strike down democratic measures in a capricious manner.
Little wonder that we the people fight so intensely over every nomination. The average justice’s tenure approaches 20 years, meaning that only once a generation the public gets to weigh in on who occupies each seat. If the Court were modest in its ambitions and respectful of the people’s capacity to govern themselves, these openings would probably not precipitate such epic political conflicts. But over the years the Court has been prone to arrogance and highhandedness, enjoining often contentious views of right and wrong. That is not what should happen in a republic.
The political battles over judicial nominations make for messy television, but they are a proper response to the Court’s tendency to undervalue our nation’s republican tradition. A vacancy is that rare opportunity for the people to remind the Court that its job is to protect our liberties without interfering unduly with our right to rule ourselves. We should hope that our representatives work their hardest to get this message across. Does this “politicize” the nomination process? Sure. But politics is essential to republican government, and the Court needs politicizing, if only once in a while, to remind it who is really in charge.
Jay Cost is a senior writer at The Weekly Standard.
