Making its case against the reelection of Donald Trump this week, The New York Times complains that the president has been “filling the benches of the federal judiciary with young, conservative lawyers as a firewall against majority rule.”
While it is hardly surprising that The Times would be dismayed by the appointment of conservative judges and justices, the suggestion that courts are acting improperly when they check the power of “majority rule” is puzzling.
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Courts are supposed to frustrate the will of the majority when it violates the Constitution. Americans on the left and right expect courts to do that, although they disagree about which constitutional constraints judges should be enforcing.
In the same package of anti-Trump essays, the Times worries about the fate of Roe v. Wade, the 1973 decision in which the Supreme Court said broad abortion bans violate the 14th Amendment’s Due Process Clause. Roe and its progeny clearly impose restrictions on majority rule, telling democratically elected legislatures how far they can go in regulating abortion.
Most conservatives — probably including Amy Coney Barrett, the originalist Trump picked to replace Justice Ruth Bader Ginsburg — believe Roe was wrongly decided, since it relied on the dubious concept of “substantive due process” to discover a right to abortion. Ginsburg herself questioned the Court’s reasoning, saying an argument based on the 14th Amendment’s guarantee of equal protection would have provided a firmer foundation.
But if you think the Constitution, under whatever provision, imposes limits on abortion laws, there is no escaping the conclusion that it requires courts to override some decisions by legislative majorities, even when those decisions are supported by most citizens in a particular state. The same is true of the Court’s 2015 ruling in Obergefell v. Hodges, another precedent that progressives worry could be threatened by Barrett’s appointment.
In Obergefell, a five-justice majority concluded that both the Due Process Clause and the Equal Protection Clause require states to recognize same-sex marriages. No matter which argument you prefer, the conclusion that the Constitution forbids state discrimination against same-sex couples necessarily means the issue cannot simply be decided by a popular or legislative vote.
While Democrats overwhelmingly support abortion and marriage rights, they are notably less enthusiastic about judicial intervention in other areas. When it comes to gun control and campaign finance regulation, for example, most Democrats seem to think majorities should be free to do pretty much whatever they want.
In the landmark 2008 case District of Columbia v. Heller, the four dissenters, all but one of whom were nominated by Democrats, took the view that “the right to keep and bear arms” imposes no limits at all on gun control laws. The Democratic Party’s platform, which this year talks a lot about gun control but does not even pay lip service to the Second Amendment, likewise seems to view it as a nullity.
In the 2010 case Citizens United v. FEC, the Court overturned restrictions on the political speech of corporations, including an ideologically diverse array of nonprofit advocacy groups. The four dissenters — again, all but one Democratic appointees — were unfazed by the facts of the case, which involved the government’s threat to fine a group for airing a movie critical of Hillary Clinton close to an election.
Democratic presidential nominee Joe Biden, who wants not only to “end Citizens United” but to “prevent outside spending from distorting the election process,” seems to take an even narrower view of what Americans should be allowed to say about politicians. But at least he recognizes that a constitutional amendment would be necessary to authorize such sweeping censorship.
During Barrett’s confirmation hearing last week, Democrats warned that Republican Supreme Court nominees threaten constitutional rights. Sen. Ted Cruz, R–Texas, had a similar complaint about Democratic nominees.
While Democrats and Republicans agree that majority rule does not trump the Constitution, they disagree about what that means in practice. Whichever firewall you favor, it is apt to have some holes.
Jacob Sullum is a senior editor at Reason magazine.
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