Supreme Court Grabbed More Power in Recent Term

Visiting Fellow
John Yoo

The U.S. Supreme Court's 2007-08 term had something for everybody. Liberals came away with a victory on the cases testing the rights of Guantanamo Bay detainees. Conservatives prevailed with the court's first defense of the individual right to own and bear firearms. Liberals applauded the prohibition on the death penalty for the rape of minors; conservatives liked the overturning of a campaign-finance law.

But the biggest winner by far was the court itself. Slowly but surely, the justices have expanded their power to make many of our society's fundamental political and moral decisions. Only the court now decides whether schools or the government can resort to race-based preferences when it admits students or doles out contracts. States and the federal government must live by the court's dictates on the regulation of abortion. Whether religious groups can help educate inner-city children or provide welfare services is up to the justices. Use of the death penalty, indeed whether each individual execution will go forward, is ultimately controlled by our unelected judges.

The decisions announced this summer only reaffirm the court's power. In Boumediene v. Bush, five justices--the wandering Justice Anthony Kennedy joined by a liberal bloc of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer--took the unprecedented step of striking down a wartime law enacted by Congress and the president.

The court itself realizes that its intervention into controversial areas such as abortion, affirmative action and religion risks its reputation as a nonpolitical actor.

U.S. history has never seen what the Boumediene majority now demands: Alien enemy prisoners at war with U.S. forces and detained outside the United States have the same right as criminal suspects to challenge their capture in civilian courts. Hundreds of years of practice, and the decided views of the political branches, to which the Constitution gives all of the powers over war, were tossed overboard.

The "gun case," as it is referred to by court watchers, District of Columbia v. Heller, performed the same feat, but in the other direction. This time, Justice Kennedy joined four conservatives--Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito--to strike down a D.C. law banning the possession of handguns in the home.

This combination of five justices, for the first time in our history, held that the Second Amendment right to bear arms attaches to individuals, not just the militia. There was less precedent and tradition at issue in Heller than in Boumediene--the court had amazingly never issued a basic interpretation of the Second Amendment, even though it is probably the only part of the Constitution most Americans can quote from memory. Nevertheless, the justices brought into question hundreds, if not thousands, of laws regulating firearms throughout the country.

While I disagree with the outcome of the Guantanamo Bay case (I was a lawyer in the Bush administration who worked on terrorism policy), I support the result with the Second Amendment. But that is not what is truly important. What really matters is not what was decided, but who gets to decide.

In all of these cases, the Supreme Court waved aside a fair amount of history, which represents the views of thousands of citizens and leaders over time, and ignored the decisions of our elected officials on matters of critical national policy.

Some might prefer that judges still make these decisions because they hear cases in a formal, rational setting and issue long opinions explaining their reasons. Nonetheless, the courts are far from ideal as policymakers: They have great difficulty trading off competing values in these sensitive areas; they are insulated from the political process; and their only access to information comes to them through the narrow lens of a lawsuit.

When the federal judiciary decides national policy on these issues, under the guise of interpreting the Constitution, it prevents the people from making the decisions for themselves.

Meanwhile, the numbers of Americans with confidence in the Supreme Court seems to be dropping. Gallup reported in June that only 32 percent of Americans have a "great deal" or "quite a lot" of confidence in the Supreme Court. While that approval rating outpaces Congress' (the lowest scorer among all U.S. institutions at 12 percent) and inches out the presidency's (26 percent), it is far behind the military's (71 percent), small business' (60 percent), and the police's (58 percent), and even loses out to the public schools' (33 percent).

The court itself realizes that its intervention into controversial areas such as abortion, affirmative action and religion risks its reputation as a nonpolitical actor. Under Chief Justice Roberts, the court has tried to take fewer cases, with this year's 67 opinions the lowest in more than half a century.

Roberts has urged his colleagues toward greater unanimity as well--this year, there were only five 5-4 decisions in constitutional cases, in contrast to 13 last year.

This is not to deny that there are moments that we need the courts to defend individual liberties against unconstitutional actions by the government. But those moments may not be as ever-present as the federal courts today may think, and the price is not just that the courts may get it wrong, but that the expansion of their powers will sap our energies of republican self-government.

"If the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court," Abraham Lincoln argued in his first inaugural address, "the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."

John Yoo is a visiting scholar at AEI.

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