Aug. 17, 2020
The average American would likely say that our country is a democracy, ruled by the people. Historians would explain that it is a constitutional democratic republic, ruled by the representatives of the people, whose power is defined and constrained by the Constitution. Many cynical observers, particularly in and around Washington, D.C., might argue that it is really a bureaucracy, ruled by the endlessly expanding regulatory agencies.
In reality, however, in many cases nine unelected individuals who hold their positions for life can effortlessly overturn, with a simple majority vote, the will of the people, their representatives, and the executive agencies—thwarting our constitutional structure itself. A government where that is true can only be described as an oligarchy.
All governing bodies tend to work towards the expansion of their own power. It is no surprise that presidents try to overstep their authority, that regulatory agencies continually expand, or that the federal government tries to encroach on the powers of the states.
The U.S. Supreme Court, however, has assumed a level of authority that significantly alters the contours of our constitutional structure and threatens the very notion of our republic. The Oxford English Dictionary defines “republic” as “a state in which power rests with the people or their representatives.” Accordingly, Article I, Section 1 of the U.S. Constitution explicitly places “all legislative power granted herein” into the hands of Congress. The representatives of the people were intended to wield the power over the content of the law, limited only by the Constitution itself. This is far from being the case today.
The Supreme Court has demonstrated that it is willing and able to successfully oppose both Congress and the direct will of the people. Consider the example of the Religious Freedom Restoration Act (RFRA), which was perhaps Congress’ strongest effort to regain its power from the clutches of the judiciary. The act was unanimously passed by Congress and signed by President Clinton in response to the 1990 case of Employment Division v. Smith, in which the justices limited religious freedom in a manner that alarmed much of the American public. The law was meant to provide a more expansive definition of religious freedom.
However, the will of our elected representatives in the House and Senate, in tandem with that of the president, proved no match for six justices, who struck down aspects of RFRA in the 1997 case of City of Boerne v. Flores on the grounds that it contradicted their earlier opinion and exceeded Congress’s enforcement authority under the Constitution. Justice Kennedy, in the majority opinion, brazenly asserted judicial supremacy, saying that “[w]hen the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles … and contrary expectations must be disappointed. It is this Court’s precedent, not RFRA, which must control.” In other words, the justices ruled that decisions of the Court supersede those of Congress.
The Supreme Court hasn’t hesitated to overturn the direct will of the American people on other issues either. The overwhelming majority of Americans support the idea of term limits for Congressmen. However, when 23 states passed term limit legislation—15 of them by referendum—five justices overturned the will of those millions of voters. In the 1995 case of U.S. Term Limits, Inc. v. Thornton, the Court ruled that states cannot add requirements to their Congressmen beyond those prescribed by the Constitution. In his heated and potent dissent, Justice Thomas said:
It is ironic that the … majority … defends the right of the people of Arkansas to ‘choose whom they please to govern them’ by invalidating a provision that won nearly 60% of the votes cast in a direct election and that carried every congressional district in the State. ... Nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for … candidates ... And where the Constitution is silent, it raises no bar to action by the States or the people.
Nevertheless, five justices disliked the idea of term limits and ignored the direct will and votes of the citizens who opposed them. This is not democratic at all.
Examples of similar cases abound. Just this year, in the case of Bostock v. Clayton County, the Supreme Court decided to dramatically alter the Civil Rights Act of 1964 by expanding the obvious meaning of “sex” to include “sexual orientation” and “gender identity.” In this case, the Court was obstructing the will of the people by tampering with a legislative and not a constitutional provision, and if Congress wishes, it can pass a law responding to Bostock. Senator Josh Hawley of Missouri accurately described the majority opinion as an “historic piece of legislation.”
It is clear that in many cases, the justices of the Supreme Court have openly transformed themselves into legislators. On certain issues, the judiciary has wielded absolute and unquestioned power over the content and meaning of the law. Whether this is to be celebrated or mourned is a question for another time. However, we can no longer deny it is occurring. We may not have fully lost the notion of our republic as of yet, but we are on the treacherous road toward doing so.
Ben Householder is an Honors student at Regent University.