Acton Institute Powerblog

High Court, high stakes: Replacing Ruth Bader Ginsburg

It is extremely uncommon for me to read anything published by Glamour. In 2018, however, a first-person profile by Clara Spera caught my attention. Spera, a Harvard-trained attorney, shared with readers a personal portrait of her grandmother, the late Justice Ruth Bader Ginsburg. Over the course of the last several months as Justice Ginsburg’s health began to fade more rapidly, and then again last week when news of her death was announced, I remembered this article and the humane sincerity with which it was written. Justice Ginsburg, it seems, spent her life in service of others – to her family as a mother and grandmother, to her students as a law professor, to her principles as a public interest attorney, and to her nation as a long-tenured judge and justice.

Unfortunately, Justice Ginsburg’s death has come when her passing is not just a cause for private grief among her family and friends but also a political event. How much worse is the death of a matriarch when so many, both friend and foe, understand her passing only in instrumental terms. For some, she was part of dam holding back a decisive rightward shift on the Supreme Court; for others, her death presents an opportunity to see that shift materialize. It is no surprise, then, that the political war has already started. Democrats and Republicans are citing one another’s 2016 remarks in the wake of the death of Justice Scalia, and a mainstream media personality is calling for riots and destruction among his 300,000 Twitter followers if “they even try to replace” Ginsburg on the High Court.

The fact that a single judge is so strategically important to advancing one political agenda or another would be completely foreign to the Framers. In Federalist No. 78, titled “The Judiciary Department,” Alexander Hamilton famously describes the courts as the “least dangerous branch.” The courts established by the Constitution, he argued, are weak. They have “no influence over either the sword or the purse.” Courts today, and over the course of Justice Ginsburg’s entire career, have been anything but weak. And the furor that erupts around the death or retirement of justices is only further proof of this.

One of the most important and controversial decisions in American constitutional law was the 1803 case of Marbury v. Madison, in which the Supreme Court led by Chief Justice John Marshall established the doctrine of judicial review. This decision established a precedent that has shaped the operation of the courts up to the present day. According to Marbury, courts possess the constitutional authority to review the legislative acts of Congress. For the first few years after the case, the doctrine gathered dust. But by 2008, Justice Anthony Kennedy, writing for the majority in Boumediene v. Bush equated an absence of judicial review with an absence of legal constraint. The Supreme Court had become the most dominant, towering branch of government, asserting control over the acts of the legislative and executive branches.

But it has not just been the legacy of Marbury that expanded the power and influence of the judiciary to proportions simply unimagined by our Constitution. The Supreme Court has traditionally been bound in its ability to consider only legal questions rather than political ones; however, that distinction has become blurred, especially in cases in the last several decades. For all of its moral faults, Dred Scott v. Sanford has more than a few jurisprudential ones, too. Chief Justice Roger Taney attempted to place slavery beyond political debate by making legally unfounded assertions rather than legal arguments – ultimately plunging the nation into Civil War. Even though the decision has been roundly condemned for its holding, the legacy of the type of legal reasoning and jurisprudential concepts employed by the Court in Dred Scott in order to reach a certain political outcome have lived on.

After World War II, the Supreme Court entered into a frenetic period of reshaping American society through cases centering on individual rights. It was this era that gave rise judicial opinions relating to abortion, prayer in schools, birth control, the rights of those arrested and accused of crimes, the death penalty, search warrants, and many other things. It is not the case, however, that some of the issues were not ripe for judicial consideration. It is that the courts side-stepped constitutional restraints on the power of the judiciary in order to do so. Constitutionally, a federal court can only consider a “case or controversy” rather than a theoretical legal question. This requires an actual litigant whose relevant rights are at issue and grants them “standing.” The Warren and Burger Courts proved to be particularly adept at discovering standing in unexplored and dusty jurisprudential corners. Further, the Supreme Court has no constitutional power to legislate, but many of the era’s decisions contain complex enforcement schemes and judicially created remedies which bear striking resemblance to legislation in form, substance, and application.

The coming weeks are going to be brutal. The stakes are high, but they shouldn’t be. The Supreme Court was never designed to be as influential as it is, but it has become dangerous by detaching itself over the course of generations from its constitutional moorings. This contentious and fractured moment is the fruit of that drift.

(Photo credit: AP Photo / Jacquelyn Martin.)

Trey Dimsdale

Trey Dimsdale is a Texas-based attorney and an associate fellow at the Centre for Enterprise, Markets, and Ethics, a free-market think tank in Oxford, England. He holds a law degree from the University of Missouri-Kansas City, as well as degrees in ethics and political science.