Senator Chris Murphy (D-CT) appeared on MSNBC this month to explain why he and his fellow Democrats have been scrutinizing the nation’s highest court. “The right wing has outsourced legislating to the Supreme Court,” he said. The conservative agenda “doesn’t get made in Congress, it gets made on the Supreme Court.” With recent media portrayals of conservative justices as unethical, he added, the Court naturally loses its legitimacy, “and when the Supreme Court starts to lose its legitimacy, they get pretty angry on the right.”

Though he declined to take responsibility for his own efforts to erode that legitimacy, Murphy makes a reasonable point. The judicial branch does rely on public confidence for its rulings to matter, especially when it is not aligned with the president and his party. And that legitimacy is threatened when courts “legislate from the bench,” making rules that should have been hammered out through democracy and debate.

An effort is underway among Democrats and a sympathetic media to degrade the Court’s public stature by suggesting that its members are unethical. As Murphy himself admits, however, the supposed violation of ethics rules is not really at issue. Progressives detested Justice Clarence Thomas long before any questions arose about his relationships with conservative donors; they were skeptical of Chief Justice John Roberts well before learning that his wife earned money as a legal recruiter. The impetus to treat the Court as illegitimate—and therefore worthy of packing, on the one hand, or outright ignoring, on the other—is motivated by disagreement over substantive outcomes or, in Murphy’s words, over perceived “legislating” from the bench.

It is always bad for the country when unelected judges create rules that state or federal legislators should have made. But it is not necessarily judicial legislation when a court issues a ruling with which one party disagrees. Judicial legislation happens when, on policy issues long considered the domain of democratic majorities, judges rule that the people may no longer make their own rules. Here, judges often substitute a legally concocted framework that balances government interests they consider “compelling” and individual rights they consider important enough to guard. This occurs in two main forms: removing a matter from the legislative realm without a clear legal basis for doing so, and reinterpreting old legal provisions to mean things that they had never meant before.

Republicans and Democrats should be able to admit that making some issues matters of constitutional obligation rather than subject to ongoing debate—“outsourcing to the Supreme Court”—distorts the separation of powers. In such cases, courts end up acting like legislatures, trying to balance the merits and demerits of a policy outcome, while lawmakers sit powerless. This version of government fails to reflect each branch’s competency. The courts are expert interpreters of legal texts; legislatures channel constituent preferences.

What Murphy failed to mention is that progressives, not conservatives, bear the primary responsibility for an overly adventurous Supreme Court and a weakened legislature. Throughout the twentieth century, the Court engaged in what can only be characterized as a wild bender of rewriting rules to fit its justices’ (progressive) moral philosophy. Roe v. Wade, which legislated a trimester-based framework for abortion regulation and removed the matter from state legislatures, was perhaps the most notorious example.

Less discussed are dozens of cases in which the justices acted like a legislature by changing the law through its interpretation. For instance, in the 1963 case of Gideon v. Wainwright, the Court determined that a nearly 200-year-old provision of the Constitution had been misunderstood by everyone who had previously interpreted it. The Sixth Amendment’s guarantee of a right to counsel, the Court held for the first time, meant that if a criminal defendant could not afford a lawyer, the state had to provide one for him. By reinterpreting what it means to have a “right” in some contexts (what if a court analogized from this decision to the Second Amendment?), the Court removed more elements of self-government from the people, forcing them to change the way they had conducted their public affairs since the Constitution was ratified.

Judicial legislation both corrodes judicial legitimacy and facilitates the reaction that Murphy claims to revile. But not all rule changes are equally distorting. To the extent that the current Court is reversing prior decisions that told Americans that they could not govern themselves as they pleased, or as they always had, it deserves praise for shoring up its legitimacy.

Photo: Kent Nishimura / Los Angeles Times via Getty Images


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