There has been a lot of chatter lately within conservative and libertarian circles about the increasing dysfunction that has set into our judicial branch, which, however ill-advisedly, now regards itself as the Union’s defender of last resort.
Lots to unpack here but I’ll return to something that I have argued before in this forum – something that was driven home to me years ago reading British constitutional scholar James Bryce’s appraisal of the American constitutional system in his classic tome The American Commonwealth, first published in 1888. Even way back then, Bryce had perceived how dysfunctional and unwieldy the federal legislative branch had become in the face of the nation’s rapid demographic and geographic expansion.
By the late 19th century it was impossible for the House of Representatives to function as a bona fide legislative assembly. Virtually all of its vital daily work was conducted via committee with all of the backroom Machiavelianism this entailed. Meanwhile, the Senate had grown far beyond its ability to function as a comparatively small, elite advisory council to the executive branch, as conceived by the constitutional framers.
By the late 19th century the judicial branch, embodied in most American minds then and now as the Supreme Court, one that was given comparatively short shrift by the Constitution by its framers, was poised for its ascent to the commanding heights of American politics and culture.
Its earliest custodians, notably Chief Justice John Marshall, had, like all elites in virtually all political systems throughout history, engineered the first tenuous steps toward an accretion of power beginning with Marbury v. Madison. But even Marshall, careful to avoid overreach and the backlash that inevitably would follow from the majority Jeffersonian camp, stepped away from one especially contentious constitutional issue of the day, conceding, however reluctantly, that the recently enacted Bill of Rights applied only the the federal government, not to the states.
The most libertarian- and constitutionalist-minded of early American statesman expressed qualms about enacting an explicit statement of rights, fearing that it ultimately would be construed by Congress or the courts as affecting state as well as federal authority.
These fears rather predictably proved prescient, following the post-Civil War passage of three constitutional amendments – the 13th, 14th and 15th – that set the Supreme Court firmly on the path toward the enunciation of the Incorporation Doctrine, which effectively worked to erode the states’ sovereignty, reducing them to de facto provinces.
Equally significant, though, is how the Supreme Court has employed the Incorporation Doctrine with many subsequent expansionist rulings in a manner that essentially has transformed it into a de facto supreme governing council – effectively, the American Union’s final arbiter.
What many observers surprisingly overlook, no doubt, intentionally in the vast majority of instances, is that the court employs enhanced powers partly to compensate for the dysfunction of the legislative branch, which the Framers regarded as the well-spring of federal policy, not to mention, the branch charged with safeguarding the balance between state sovereignty and that which had been delegated – conditionally, it should be stressed – by the states to the federal government.
The behavior and public pronouncements of the current Supreme Court Chief Justice John Roberts and and his immediate predecessors seem to reflect this fact. The case could be made that the court has been aware for decades of the role it has served, however unconstitutional, in shoring up the deep dysfunctionality of the legislative branch, one whose efficacy has been badly eroded within the past century and a half but especially in the years after World War II when the United States emerged as a global empire..
Yet, increasingly, the Court finds itself hemmed in, if not trapped, by the demographic and cultural changes overtaking the country, many of which are of its making. One recent example: It’s decision following the 2020 election not to hear the case lawsuit challenging late changes to Pennsylvania’s election process.
Despite a thunderous dissent by Justice Clarence Thomas, two justices previously regarded as being in the tank for the right, Brett Kavanaugh and Amy Comey Barrett, voted with the majority. And why should we find that at all surprising? Given the way the Mainstream Media organs characterized Thomas’ opinion as dissent bordering on sedition, it’s easy to discern why a court that they regard a majority conservative one has gotten into the habit of carefully hedging its bets.
SCOTUS, to employ one of the Orwellian Newspeak-style terms that characterizes so much of cultural and political discourse now days, is walking an increasingly thin rope. It carries on what it undoubtedly regards as a lofty and valiant struggle to safeguard not only a dysfunctional legislative branch but an increasingly divided, if not fraying, American Union. Yet, as a marginally conservative court, regarded as illegitimate by many, if not most, of our Mandarin class entirely for that reason, it imposes limits on the manner in which which it weighs in on the most pressing issues of the day.
This amounts to one of the most remarkable ironies in U.S. political history: The judicial branch that, at least for the last century, has regarded itself as the panel of last resort and that has played a major role in the sweeping changes within American society, now feels constrained and even threatened by this transformation – so threatened that is now limiting its judicial activism.
This raises a troubling question: Who mans the rudder of state, certainly during an extreme national crisis? If the legislative and judicial branches have been rendered either too dysfunctional or too threatened to step in during a major upheaval, who will?
It serves as another reminder to me and many other red heartlanders of the precarious times in which we live.