This column by Ryan W. McMaken originally appeared on the Ludwig von Mises Institute website on May 13.
The Supreme Court’s recent decision on prayer at government meetings reminds me that Supreme Court “season” is upon us. And for the next two months or so, we can expect to see the court decide on a variety of cases that can have profound impacts on the lives of citizens and non-citizens alike. The court’s decision in Town of Greece vs. Galloway has produced a lot of commentary on both sides, with much discussion about the dynamics between justices, and how Justice Anthony Kennedy must have been in a pro-prayer mood that day, since his decisions appear to be made on a variety of unknowable whims.
Nearly all of this commentary contains the assumption that it is perfectly normal, and probably laudable, that the Supreme Court has the power to decide the legality of virtually everything under the sun, from the death penalty to where local governments can build strip malls.
If there was ever any doubt that public schooling has been an immense success when it comes to conditioning children to blindly accept even the most implausible myths of governance, we only need look to the high regard in which most Americans hold the Supreme Court. The fact that nine modern philosopher kings are empowered to sit in judgment of every American law and custom, right down to whether or not a city council meeting, in a town virtually no American could find on a map, can include some bland prayer time. It troubles no schoolchild that he is taught that democracy is the source of legitimacy for all governments one minute, and then the next minute is told he should fully trust nine lawyers in robes in Washington, D.C., to have the final word on law for 300 million Americans.
The proposition that nine people should tell 300 million people what sorts of laws they should make is rather ludicrous on its surface, but the justification largely rests on the assertion that the judges are somehow above politics and make decisions based on nearly pure reason. Political scientists and most people with experience in the legal profession no doubt know this is nonsense, but the average American is far more likely to be accepting of the long-standing myth that the court is a sort of backstop that prevents “bad” American laws from being allowed to stand. “Sure,” they might say, “Congress and the President, which are infected by vulgar politics, can do many horrible things; but the Supreme Court will dispassionately evaluate them and decide laws strictly on their legal merits.”
This view of the court is of course hopelessly fanciful, and the truly political nature of the court is well documented. Its politics can take many forms. For an example of its role in political patronage, we need look no further than Earl Warren, a onetime candidate for President and a former Governor of California, who was appointed to the court by Dwight Eisenhower. It is widely accepted that Warren’s appointment was payback for Warren’s non-opposition to Eisenhower’s nomination at the 1952 Republican convention. The proposition that Warren somehow transformed from politician to deep thinker after his appointment is unconvincing at best. Or we might point to the famous “switch in time that saved nine” in which Justice Owen Roberts completely reversed his legal position on the New Deal in response to political threats from the Franklin Roosevelt Administration. Indeed, Supreme Court justices are politicians, who behave in the manner public choice theory tells us they should. They seek to preserve and expand their own power.
The court, jealous of its power and reluctant to hand down decisions that might actually cause the court to lose prestige, is at times careful to reflect the majority opinion regardless of how atrocious it might be. To see this, we need look no further than Korematsu vs. The United States, in which the court declared it perfectly legal to round up American citizens and throw them into concentration camps.
The court forever plays a careful balancing act with both the public and with other branches of the Federal government in which if continually pushes the bounds of Federal power without rocking the boat to the point of calling its legitimacy into question among the majority of the population. Naturally, Congress and the Presidency, themselves committed to untrammeled Federal power, have no problem with most of this on most occasions, except perhaps in the details.
Bizarrely, however, the court has even managed to cultivate a reputation as a limit on the power of government, as well as a reputation that justices will rein in the state because it is committed, however imperfectly, to the Constitution of the United States. This is wishful thinking in the extreme, however, since the Constitution is nothing more than what the Supreme Court says it is; and this has been well established since Chief Justice John Marshall first introduced judicial review into the court’s decisions. If the Constitution was designed to prevent rule by judges (which may or may not be the case), it has clearly failed in its mission. Moreover, the court acts to insert intellectual legitimacy into laws and policies that formed out of nothing more that interest group lobbying, political payoffs and even outright corruption. Once these laws receive the imprimatur of the Supreme Court, they cease to be political acts, questionable in origin, and take on the life of perpetually established law and precedent.
The public’s deference to the court and its decisions is the key factor in the court’s immense power, and the myth of the court as the protector of what’s left of the Constitution is especially powerful. But as Ludwig von Mises noted in Liberalism, as an agent of the Federal government, the idea of the court as a friend to limited government is an absurdity:
The tendency to impose oppressive restraints on private property, to abuse political power, and to refuse to respect or recognize any free sphere outside or beyond the dominion of the state is too deeply ingrained in the mentality of those who control the governmental apparatus of compulsion and coercion for them ever to be able to resist it voluntarily. A liberal government is a contradictio in adjecto. Governments must be forced into adopting liberalism by the power of the unanimous opinion of the people; that they could voluntarily become liberal is not to be expected.
Naturally, the court does not limit itself at all, but it knows it is nonetheless limited by public opinion at least as well as anyone else. The court’s strenuous efforts to maintain an aura of majesty and intellectual loftiness can be seen in its refusal to allow television cameras in its hallowed halls or any sort of direct observation by the public at large. The judges wear academic robes and sit on their high bench. They could just as easily do their jobs in business suits while sitting at the same height as everyone else. Of course, if that were the case, the justices would just look like the glorified county commissioners they are; and the court’s propaganda war against the public is essential in maintaining its near total immunity from any meaningful oversight from anyone at all.