Glenn Reynolds: Majoritarianism in the Courts Is a Bad, Bad Thing

With Senate Democrats going for a filibuster against the nomination of Supreme Court nominee Neil Gorsuch, things are about to get hairy in the Capitol. It seems without question that Gorsuch is a competent, qualified jurist and the Dems almost surely are shooting themselves in the foot by trying to block his appointment. Most Americans don't care overly much about judicial philosophy, but nothing Gorsuch has written and discussed disqualifies him or marks him as incompetent. Making his nomination a pure political play will alienate everyone except strict liberal ideologues.

Writing in USA Today, Glenn Reynolds of University of Tennessee Law School and Instapundit.com has a sharp, concise column up about the role of the Supreme Court in deciding whether laws are constitutional or not. Citing libertarian legal school and Georgetown professor Randy Barnett's recent book, Our Republican Constitution, Reynolds explains that the Constitution's animating principle was decentralizing power, especially of a simple majority.

The powers of government were limited, and separated among various branches, and divided between the federal government and the states, while some things were placed beyond the power of the government entirely. This was intended to ensure that minority groups could go about their business unmolested by the majority.

During the Progressive Era of the 19th century, these limitations on majority power chafed Progressives who were in the legislative majority. They wanted to make big changes, and the Constitution's limitations made that hard. Progressive legislation kept losing in the courts, who kept pointing out that it was inconsistent with Constitutional limits on government power, and Constitutional protection of things like private property rights.

This led to a rule of judicial restraint that was the beginning of the democratic constitution, where majority power reigned supreme. Its first major appearance was in an article by Harvard law professor James Bradley Thayer, arguing that courts should not strike down laws as unconstitutional, so long as they could imagine a reasonable person thinking them valid. Only in cases of clear mistake should judicial review lead to laws being held unconstitutional.

This thinking found its first Supreme Court application just a few years later in the 1896 case of Plessy v. Ferguson, upholding segregation under the famous "separate but equal" formulation (though this phrase was not part of the opinion). Echoing Thayer, Justice Brown wrote "We cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable." Also at that time, as Barnett notes, writers stopped talking about courts' duty to strike down unconstitutional laws and started talking about their power to do so. Not exercising a duty is a dereliction; not employing a power could be characterized as self-restraint.

Nonetheless, in other cases, the Court applied the republican constitution, striking down (in Buchanan v. Warley) a Kentucky racial zoning law backed by a majority, and (in Bailey v. Alabama) barring enforcement of labor contracts for black people that, in reality, amounted to involuntary servitude. In both cases, the importance of individual rights trumped the majority's desire.

Read the whole piece.

Barnett and Reason's Damon Root have written a lot about the problems that come from the courts showing too much deference to elected officials. Ironically, conservatives are quick to bitch and moan about "judicial activism" but often the bigger problem is when courts look the other way as legislators arrogate more and more power to themselves.

However the Gorsuch confirmation plays out, this larger argument about activism and deference is a key battleground, especially in a country that is sharply polarized and in which partisans want more than anything to punish the other side. It's also a place where the libertarian rejection of majoritarianism is an attractive alternative to the right and left, who seem happy to go along with the wisdom of crowds as long they like a particular outcome.

Reason TV talked with Barnett the day after Gorsuch's nomination was announced. Click below to learn "Everything You Need To Know about Neil Gorsuch":