Henry Olsen: Ignore the Progressives’ Howling About the Supreme Court’s Legitimacy

From a Washington Post column by Henry Olsen headlined “Ignore the progressives’ howling about the Supreme Court’s ‘legitimacy'”:

Progressives are howling that the Supreme Court’s conservative turn this term heralds a decline in the court’s “legitimacy.” As if.

Nothing about the court’s legitimacy has changed. The only thing that has changed is its judicial philosophy, and if progressives don’t like it, they must do what others aggrieved at the court have done throughout our history: mobilize to turn the tide in their favor.

The Supreme Court in early U.S. history did not issue many decisions that determined which political faction prevailed. Indeed, it was not until 1857 that the court stepped into the political minefield with its outrageous ruling in Dred Scott v. Sandford that no descendant of slaves could be an American citizen. Abraham Lincoln and other Republicans decried the decision and pledged to organize the court to ensure it was overturned. It took the Civil War to grant them that power.

Later, in the early 20th century, conservatives used their court majority to strike down state economic regulations, in what has been called the Lochner era. Liberals and progressives of the day responded by adopting a doctrine of deference to legislative bodies (which, not coincidentally, their allies were likelier to control). Franklin D. Roosevelt’s massive electoral victories in the 1930s, combined with the court’s aged conservative majority passing away, ushered in decades of left-wing dominance on the court. Supported by political majorities, those justices and their successors created modern constitutional jurisprudence.

Today’s 6-3 conservative majority is the result of a similar political mobilization to overturn that judicial philosophy. Most conservatives view that approach as wrong — and constitutionally illegitimate. The Federalist Society, of which I have been a proud member since 1987, considers that jurisprudence to be outcome-based rather than grounded in the Constitution and traditional rules of statutory construction. The conservative strategy — organizing politically to bring judicial doctrine in line with political philosophy — is exactly what all groups deeply disenchanted with the court’s direction have done since Dred Scott.

The success of this mobilization at the ballot box is the reason for the current court majority. The court’s composition was effectively on the ballot in 2016 as Justice Antonin Scalia’s unexpected passing meant that only Donald Trump’s victory would prevent Democrats from cementing a 6-3 majority of their own. (Liberals who complain that President Barack Obama was robbed of a court appointment are wrong. No justices can join the court without Senate approval, which Obama never secured.)

Indeed, one could say that the progressive triumph in Obergefell v. Hodges — the 5-to-4 decision that overturned centuries of precedent regarding the definition of marriage and the ability of states to regulate it — is why Trump prevailed. Many conservatives feared what a 6-3 progressive court would do and swallowed their qualms about Trump to keep that catastrophe from unfolding. In other words, the progressives’ great triumph might have ironically made the unraveling of their entire judicial edifice possible.

Progressives angry about the current court are in the same position as others unhappy with court rulings throughout history. They can prevail only by following the same course that liberals in the 1930s and conservatives in recent decades have taken: Win political victories that push the court in their direction.

There’s another theoretical solution: Reduce the court’s power or opportunities to decide so many politically contentious cases. It seems today that almost every federal executive action is turned into a judicial issue, with the opposing party immediately filing lawsuits. The same is true of state-level action. Americans also have a tendency to file lawsuits to influence policy. Is a football coach’s kneeling for public prayer after a game really such an egregious breach of rights to warrant a federal case? This litigiousness gives the court regular opportunities to make politically controversial rulings, which only fans our political flames.

The Constitution also gives Congress the power to regulate the court’s appellate jurisdiction. Congress could limit the type of cases the court can hear, preserving its ultimate judicial authority for cases involving serious breaches of constitutionally protected rights or the constitutional structure of government.

Neither side, however, is likely to curb its own litigiousness, and bipartisan agreement to limit the court’s jurisdiction won’t happen. As a result, the battle over judicial philosophy will intensify and become even more important in the political sphere. That’s not an issue of “legitimacy”; it’s our democracy doing what it always does, ensuring that the people ultimately interpret their own Constitution and thereby genuinely rule.

Henry Olsen is a Washington Post columnist and a senior fellow at the Ethics and Public Policy Center.

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