Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.
The Supreme Court: Guardian or Threat?
By Jesse Covington
June 8, 2015
Many Americans focused their attention on the Supreme Court when it heard oral arguments in Obergefell v. Hodges and its three companion cases in April of this year. These cases involve one of the more prominent social issues of our time: whether the Constitution requires states to license same-sex marriages (and, even if not, whether states must recognize same-sex marriages performed in other states). People of goodwill on both sides of the same-sex marriage debate are looking to the Supreme Court to resolve policy controversy in this area, to place the stamp of judicial approval on one view or the other. Many see Obergefell as an opportunity to make full access to same-sex marriage the law of the land. Others hope that this view will be decisively rejected. But are these hopes for decisive judgment well placed? To what extent should we expect the judiciary to resolve this question?
Answering this question requires a close look at the role of the judiciary in American constitutionalism. Advocates on both sides of Obergefell have strong—and divergent—views. On the one hand, many see same-sex marriage as the major civil rights issue of our time and an opportunity for the Supreme Court to perform its most important duty: protecting minority rights against the legislative intrusions of majority tyranny. In contrast, many others see this as a likely instance of judicial overreach, in which the Court risks creating law rather than interpreting it. This moment between oral argument and the Court’s decision offers an apt and important opportunity for assessing the role of the judiciary in our constitutional order. To what extent is the Court the rightful guardian of rights and the rule of law, and to what extent is it a potential threat to rights and the rule of law?
This is a question of no small import and has implications for Christian political reflection in the Reformed tradition where government’s responsibility of doing justice requires both authority and accountability. In the Stone Lectures, Abraham Kuyper observes that the state must protect the operation of what he called the “social spheres”—“the family, the business, science, art and so forth”—in fulfilling their unmediated obligations to God, but it must do so without intruding upon their operation.[i] The duty of policing the boundaries of the social spheres, however, requires significant coercive power (“the sword of order”) and entails real potential for abuse.
The result is an ongoing tension that must be regulated by law: “the government is always inclined… to invade social life…. But social life always endeavors to shake off the authority of government….”[ii] While Kuyper overstates Calvin’s contribution to constitutionalism when he says that “Calvinism may be said to have generated constitutional public law,” he is nevertheless quite right that constitutions play a key role in “regulat[ing] the mutual relation of these two.”[iii] As David Koyzis has observed, the Reformed tradition anticipates political limits on governmental power through constitutional mechanisms of elections and internal checks and balances, and it anticipates external limits through all aspects of society faithfully continuing to do justice in their spheres of responsibility, even when in tension with governmental overreach.[iv] In what follows, I assess the United States judiciary with an eye to these concerns.
The Judiciary and the Rule of Law
Kuyper’s ideas resonate deeply within the American context. Those familiar with the text of the US Constitution will recall Article III’s brief account of the judiciary: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” It then continues, “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority….” While a good deal more could be said here, the “judicial power” is clearly one of referring cases and controversies to law. Unlike legislatures, which create law, and the executive branch, which is charged with faithfully executing the law, the judicial power is one of rendering judgment about law’s bearing on specific cases.
The Constitution’s construal of the judiciary relies on a commitment to the rule of law—the “rule of rules, rather than the rule of rulers.” Such rules need to be fixed, known, binding, and immune to change at the caprice of a ruler. In his Second Treatise of Government, John Locke describes the rule of law as central to solving the problem of arbitrary power. Rather than have a person—who can never transcend self-interest—act as the final political authority, the law must instead serve as arbiter between interested parties.[v] Kuyper says much the same thing when he calls for regulation between government and social spheres to be “under the law,” rather than the agency of the executive power.[vi]
The US Constitution’s reliance on a separation of powers simply renders the rule of law operable. Those who make the law can expect to have the same laws applied to them by the other branches of government, so that no one stands above the law. As an erstwhile fellow graduate student once put it, this is akin to two children dividing a last piece of cake without the intervention of a parent: if one cuts it and the other picks a half, the result will be relatively fair despite self-interest. The Constitution’s vision for the judiciary relies on this idea for the rule of law: judges must decide cases with reference to the law rather than anyone’s preference.
In Federalist 78, Alexander Hamilton defends the role of the judiciary proposed by the Constitution, including the implicit power of judicial review—the authority to assess the constitutionality of legislation or executive action. Hamilton treats judicial review as inherent to constitutionalism: the laws made by authorities created by the Constitution cannot supersede their source. As he puts it, the very nature of a limited constitution “…can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”[vii] Hamilton describes the very nature of constitutionalism as limiting legislative power. Majority will is bound by the text of the Constitution, which in turn can be applied by the judiciary.
The case of Marbury v. Madison in 1803 further entrenches this principle in American jurisprudence. In Marbury, Chief Justice John Marshall echoes Hamilton on the role of judicial review in constitutionalism: “It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it….” As a result, “an act of the Legislature repugnant to the Constitution is void.”[viii] In this sense, the judiciary has an important “checking” role on the other departments of government, helping to limit their potential unconstitutional extensions of power.
The scope of this role, however, remains a subject of lively debate, even as judicial review has expanded. Examples in history prove both regrettable and laudable, in turn. After Marbury, the Court’s next occasion for striking down a federal law came in 1857, when in Dred Scott v. Sanford it declared the Missouri Compromise unconstitutional.[ix] In a decision widely criticized for judicial overreach, the Court insisted—without a good textual warrant—that the Constitution prohibits Congress from banning slavery in US territories. In contrast, in Brown v. Board of Education (1954), the Supreme Court struck down race-based segregation in education, pursuant to the Fourteenth Amendment’s provisions for equal protection of the laws.[x] Arguments over whether the Court is protecting legal rights or undermining the rule of law have centered on the question of whether it is the Constitution ruling, or judges.
Increasingly expansive interpretations of judicial review have shaped contemporary discourse about the Supreme Court. Chief Justice Earl Warren put it quite starkly in Cooper v. Aaron (1958): “the federal judiciary is supreme in the exposition of the law of the Constitution.”[xi] Warren depicts the Supreme Court as the final and authoritative interpreter of the Constitution, a view some describe as “judicial supremacy.” On this telling, the three branches of government are not equal co-interpreters of the Constitution, but are ultimately subject to the judgment of the judiciary. This is an odd view, given the oaths of constitutional fidelity taken by many in non-judicial posts. Judicial supremacy carries with it the potential to arrogate the judiciary to the position of the law in Locke’s formulation: the third party that adjudicates disputes between interested parties. Unlike the law, however, courts are composed of human beings. This raises the danger that judicial supremacy supplants the rule of law with the rule of judges, making limits on judicial power a central question. To what extent can judicial power be limited?
The Least Dangerous Branch
Addressing related concerns in Federalist 78, Hamilton defends the Constitution against claims that it would create a judiciary with too much power. He explains that judges are in fact accountable, since the text provides for their removal for breaches of good behavior. Hamilton goes on to make his famous claim that the judiciary is “the least dangerous” branch of government, since it “is beyond comparison the weakest of the three departments of power….” Against the idea that judges would exercise too much power—that a few, unelected people serving unlimited terms might act despotically—Hamilton insists that judges will have neither the power of the sword (like the executive) or the purse (like the legislature). “It may be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”[xii] While courts can exercise judicial review, Hamilton indicates that they cannot act alone and are subject in this regard to the concurrence of other branches of government.
This dependence highlights an important role for other branches of government in rendering constitutional judgment. Abraham Lincoln’s response to the Dred Scott decision illustrates this. While acknowledging the Supreme Court’s decision as binding on the litigants in that case and insisting that the Court’s judgment be given the “highest respect and consideration” of other branches, Lincoln denounces anything approaching judicial supremacy. He states: “…the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, 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….”[xiii] On this telling, judicial supremacy is incompatible with republican government, in which legislators, accountable to the people by regular elections, pass laws for the common good.
As we prepare for the Supreme Court’s decision in the same-sex marriage cases, we return now to the question with which we began: To what extent is the Court the rightful guardian of rights and the rule of law and to what extent is it a potential threat to rights and the rule of law? How can we be confident that government is doing justice, but not invading the rightful operation of other spheres of society?
First, we should bear in mind the proper role of the judiciary: to decide cases with reference to the law. Thus, it is important for both sides of debates about same-sex marriage to resist framing their assessments of the Court’s decision first and foremost in terms of preferences or what makes for good policy. The law, rather than competing policy views, should guide the Court and our evaluations of its decision. The primary constitutional provisions at issue in Obergefell are the Fourteenth Amendment’s protection against deprivation of liberty without due process of law and its guarantee of equal protection of the laws for all persons within its jurisdiction. Our response to the Supreme Court’s decision should reflect the extent that we are persuaded that these provisions, accounting for others in the Constitution, provide a sufficient basis for evaluating state laws regulating marriage. I, for one, am not persuaded that they do, particularly given the federal structure created by the US Constitution in which states enjoy plenary powers for questions like regulating marriage. This is not a fringe position. Even United States v. Windsor (2013), in which the Court required federal law to broaden its understanding of marriage, insists that the Constitution has made states responsible for the “definition and regulation of marriage” since “the Nation’s beginning….”[xiv]
Second, whichever way the Court decides the case, we should be wary of treating its decision as a final settlement of same-sex marriage as a policy question. The Court does not create social policy, but rather interprets the law as it is set by others—and even in this capacity it does not operate with absolute sovereignty. Even the Fourteenth Amendment vests Congress with authority to “enforce, by appropriate legislation, the provisions of this article.” When a decision offers an expansive construal of a policy question, a healthy circumspection is due—informed by a concern and an appreciation for our republican form of government and the separation of powers within it. As Hamilton observed, the operation of such checks is vital to a limited judicial power. Likewise in Kuyper’s vision, such limits of law and separated power are essential to government’s duty to “do justice” without unjustly intruding on the social spheres.
Third, and more personally for each of us, the Reformed tradition counsels that we should all continue to do justice in our spheres of responsibility. This duty binds us regardless of the Court’s decision and prioritizes faithfulness in our individual activities, our families, our churches, our vocations. This is likely to produce points of healthy tension or friction with state action that will vary according to the Obergefell ruling and our own convictions. However, focusing on our obligations to specific areas of faithfulness provides a salutary perspective on the import of this case.
Questions for Reflection:
- Can you frame your opinion about Obergefell v. Hodges in terms of the Fourteenth Amendment?
- What are the public policy implications of a public justice perspective on marriage and sexuality?[xv] In our constitutional context, where are these best pursued?
- Where among your spheres of responsibility might you anticipate tension or friction with state action resulting from the Obergefell decision? How can you anticipate responding?
- Jesse Covington is Associate Professor of Political Science at Westmont College and for 2014-15 is William E. Simon Visiting Fellow in Religion and Public Life at the James Madison Program of Princeton University.
[i] Abraham Kuyper, Lectures on Calvinism, 8th ed. (Grand Rapids: Eerdmans, 1987), 90.
[ii] Abraham Kuyper, Lectures on Calvinism, 8th ed. (Grand Rapids: Eerdmans, 1987), 93.
[iii] Abraham Kuyper, Lectures on Calvinism, 8th ed. (Grand Rapids: Eerdmans, 1987), 94.
[iv] David T. Koyzis, Political Visions and Illusions: A Survey and Christian Critique of Contemporary Ideologies (Downers Grove, IL: IVP Academic, 2003), 261-64.
[v] John Locke, Two Treatises of Government (Cambridge, UK: Cambridge University Press, 1988), 358-61.
[vi] Abraham Kuyper, Lectures on Calvinism, 8th ed. (Grand Rapids: Eerdmans, 1987), 94.
[vii] Alexander Hamilton, John Jay, and James Madison, The Federalist, 2nd ed. (Indianapolis, IN: Liberty Fund, 2001), 403.
[viii] Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
[ix] Dred Scott v. Sandford, 60 U.S. 393 (1857).
[x] Brown v. Board of Education, 347 U.S. 483 (1954).
[xi] Cooper v. Aaron, 358 U.S. 1, 18 (1958).
[xii] Alexander Hamilton, John Jay, and James Madison, The Federalist, 2nd ed. (Indianapolis, IN: Liberty Fund, 2001), 402.
[xiii] Abraham Lincoln, "First Inaugural Address," (1861). See also Robert George’s analysis in First Things: http://www.firstthings.com/article/2003/02/lincoln-on-judicial-despotism
[xiv] United States v. Windsor, 520 U.S. ___, 18 (2013).
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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”