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A Republic, or a Juristocracy?

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A Republic, or a Juristocracy?

More significant than the immediate consequences of recent Supreme Court decisions may be the Court’s effect on how Americans understand their country. June 29, 2022
Politics and law

It’s hard to overestimate the importance of the newly constituted Supreme Court for American civic life. Of course, the immediate focus has been on the significant and discrete decisions it has rendered, such as overturning Roe v. Wade, protecting the right to carry a gun outside the home, and vindicating the right of a high school football coach to pray after a game. But of equal importance in the long term is the Court’s reasoning. Through its opinions, the Court can change the way people think about law—and thus the way they think about an American republic constituted by law.

In a notable essay, University of Chicago political theorist Ralph Lerner captures this essential function of the Court. The Court is, in his terms, “a republican schoolmaster,” bringing to life the enduring text of our fundamental law and applying it to a new age. As Lerner notes, Alexis de Tocqueville saw the Court early in its tenure as “the educator, molder, or guardian of those manners, morals, and beliefs that sustain republican government.” The Court thus has an educational task—bringing each generation back to consider anew the foundations of the American republic.

The Roberts Court faces a tough task because it must speak to the American people through channels in which most messengers and interpreters—the press and the academic world—are radically hostile to its messages. Indeed, their hostility is magnified by the recognition that Court is now the one institution historically dedicated to reason that progressives do not control. Progressives may have an easier time accepting that elections may sometimes go against them: politics can be dismissed as an arena of base interests and manipulation. But when an institution dedicated to reasoned deliberation and interpretation is not aligned with the progressive program, it creates a serious threat to progressive hegemony over social thought. The Court’s opportunity to contest that hegemony and restore the fixed foundations of our republic thus provides the crucial social context of its opinions this term.

Dobbs, of course, will be remembered for overturning Roe v. Wade. But it also offers the most deliberate debate on constitutional interpretation in decades. The majority is clear that the Constitution’s text should ideally be understood today as the Framers would have understood it. And the Court makes clear the benefits of its interpretation to the public. On controversial issues on which the Constitution is silent, democracy offers the flexibility to make varied compromises over time.

New York State Pistol and Rifle Association v. Bruen was similarly notable for endorsing originalism. The Court intervened because the Constitution’s plain text protects the right to bear arms outside the home. And again, the Court explained, as a good republican schoolmaster should, that this provision was historically connected to an essential republican right: self-defense.

In Kennedy v. Bremerton School District, Justice Neil Gorsuch held that the meaning of the First Amendment’s Establishment Clause flows from its text and historical understandings and thus did not interfere with private prayer even during a public school event, such as a football game. Indeed, Gorsuch provides the key explanation of the relevance of the decision to republican life: such prayer is essential if we are to respect one another in a diverse and pluralistic society.

These three opinions make clear not only that originalism is now the Court’s interpretive philosophy but also that the Court intends to explain why the original meaning remains relevant today. And the rise of a consistent originalism also explains the vehemence of the dissents because so much of the leftward movement in our public life previously had been at the direction or sufferance of the judiciary.

Consider that the dissent in Dobbs could have simply defended Roe as a matter of stare decisis (a presumption that the Court should stick with prior decisions). But originalism represents such a threat to a traditional source of the Left’s power—to change the Constitution without consulting the people—that the Dobbs majority elicited a joint dissent, which suggested that the Constitution was rightly interpreted to provide a right to abortion.

Because the dissenters cannot contend that anyone thought that the provisions of the Constitution at the time of their enactment contained a right to abortion, they advance three distinct attacks on the majority’s originalism. First, they suggest that, at least on issues of concern to women, the document’s original meaning may not be binding, because women did not participate in making the Constitution. It is true that women did not vote to ratify either the original Constitution or the Fourteenth Amendment. But how does it follow from that observation that the Constitution should be interpreted to include a right to abortion? No evidence suggests that if women had voted in the ratification process that a right to abortion would have been on the agenda. Even now, the percentages of men and women who favor and oppose abortion rights are roughly equal.

Second, the dissent argues that the Constitution provides judges the authority to update the meaning of a term, such as “liberty,” even if it had been understood more narrowly. But even assuming that the meaning of liberty was key to the resolution of the case—a point that many originalists would dispute—the Constitution provides a mechanism for evolution: the amendment process. In contrast, there is no provision that delegates to judges the authority to “evolve” the Constitution. Indeed, in his famous defense of judicial review in Federalist 78, Hamilton was at pains to dispel the anti-federalist fear that equitable interpretation would give the courts the freewheeling authority to consolidate all power in the federal government. Not so, said Hamilton: they would be bound by “strict rules.”

Third, the dissenters argue that many important Supreme Court precedents cannot be squared with originalism, showing that originalism cannot be the Constitution’s controlling mode of interpretation. Of course, the Court has made mistakes on occasion. That is the reason we have stare decisis, to protect even wrongly decided precedents in cases where their overruling would have enormous costs. It is also true that some non-originalist precedents have proved beneficial. But that does not mean that society would not have found other ways to reach comparable results through democratic processes, including, at times, the amendment process. The existence of non-originalist precedents does not provide an argument for giving these decisions, often made by a bare majority of justices, a generative force to trump the more deliberated consensus that represents the original meaning of the Constitution’s text.

Nevertheless, these passages in Dobbs are the best of the dissenters’ contribution in these cases. Like the majority, they offer a clear view of what the American polity should be. It is, in their view, a nation where judges wield substantial discretionary authority independent of the text’s original meaning—a juristocracy. In contrast, the vision of the majority is a republican democracy, where voters make decisions within the textually bounded limits created by a previous consensus of citizens.

Photo by MANDEL NGAN/AFP via Getty Images

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