I am discovering that the Supreme Court shares the public's contempt for Congress. Last week, the Court struck down a major provision of the Voting Rights Act and held that the Defense of Marriage Act violated the Equal Protection Clause. While I agree with the latter decision and disagree with the former, they illustrate a troubling theme in the Court's recent jurisprudence: the demise of judicial restraint.
"The 14th Amendment," Justice Oliver Wendell Holmes famously commented, "does not enact Mr. Herbert Spencer's Social Statistics." (Spencer, for the non-Anglophiles out there, was the 19th century English biologist and philosopher who, expanding on Darwin, coined the phrase "survival of the fittest.") From Holmes' brilliant mind sprang the doctrine without which unelected judges and democracy cannot co-exist: judicial restraint, which, in Holmes' pithy turn of phrase, bars "the judiciary [from sitting] as a super-legislature to judge the wisdom or desirability of legislative policy determinations."
Holmes understood that the rule of law and the sovereignty of the people make uneasy bedfellows. Courts have no armies and no purse strings with which to enforce their decrees, but, if their decrees are not obeyed, democracy cannot survive – the insoluble paradox of the separation of powers. And so, judges must tiptoe around the other branches, claiming supremacy only when the law truly demands it.
When the Court's Four Horsemen finally rode off into the sunset in the 1930s, Holmes' wisdom waxed ascendant. For the next 50-plus years, the Court did not strike down a single act of Congress as unconstitutional. No doubt, laws came before the Court in those five decades that some, or even all, of the justices considered foolish, or bad policy, or both — measures for which the justices would not have voted had they been legislators. But the Court stayed its hand because the justices were chary of stepping on the toes of the people's elected representatives.
In the 1990s, alas, chariness went out the window. The Court fired its opening shot (no pun intended) in United States v. Lopez, which held that the Congress exceeded its Commerce Clause authority when it enacted the Gun-Free School Zones Act. Other federal laws soon took the same lonely walk to the execution block. From the Violence Against Women Act to portions of the Brady Handgun Act to the federal sentencing guidelines, the justices started to act as if they were, in Holmes' words, a "super-legislature" fit "to judge the wisdom or desirability of legislative policy determinations."
Notice, by the way, that most of these laws were (so-called) "liberal" measures invalidated by a 5-4 "conservative" majority. The tectonic shift in the Court's attitude towards the acts of its sibling branch did not happen by accident. It was the product of 30 years of conservative judicial thought born in reaction to the progressivism of the Warren Court and come to maturity under former Chief Justice William Rehnquist — a legal revolution in slow motion. For all that the great fauxbertarian Justice Antonin Scalia bemoans, in his dissent in the DOMA case, "an exalted conception of the role of this institution in America," 'twas a conservative hand that plunged the knife into the body of judicial restraint.
There is no better example of the Court's self-aggrandizement than its decision that Congress acted irrationally when it reauthorized provisions of the Voting Rights Act. Not only did Congress assemble, in Justice Ruth Bader Ginsburg's words, a "massive legislative record" to support its action, Congress acted in an area — voting rights — in which the Constitution expressly entrusts Congress with primary authority. To be sure, one can make rational arguments both pro and con whether the areas covered by the VRA's pre-clearance requirement are, in fact, those most in need of such special attention. That, of course, is precisely the point; the arena in which to make, and then choose among, those rational arguments is Congress, not the Court.
DOMA is troubling for a separate, but related, reason. The act itself is the extremely rare instance of a legislative act with no rational basis. However, the majority's lack of hesitation (at least publically; perhaps the justices gnashed their teeth in conference) at invalidating it demonstrates that every member of the Court — conservative and liberal — now scratches his head and mutters, "Oliver Wendell who?," when the question of whether Congress chose wisely comes before it.
Cicero famously extolled the "good of the people" as the highest law. Two millennia later that standard remains an elusive and subjective beast. In a democracy ironically dependent on the wisdom of the unelected, we compensate for that by entrusting primary authority to determine the good of the people to the people themselves. Justice Holmes understood that; sadly, his heirs do not.•