With the Supreme Court now starting its second term at diminished capacity, some commentators are trying to make lemonade out of lemons, suggesting that it's a good thing that the Court only has eight justices. According to one of these commentators, for example, we're better off if the Court doesn't make big decisions and instead leaves those questions to be worked out through the political process. The problem with this view is simple: our nation's Framers deliberately decided we shouldn't leave all questions to the political process. That's why they enshrined certain rights in our Constitution and entrusted the federal courts -- including the Supreme Court -- with the power to enforce them. And that's why we should want the federal courts to do their job -- and Republican Senators to do theirs.
Our Founding Fathers believed in democracy, but they also recognized its limits. They recognized that majorities will sometimes trample on the rights of minorities, that emergency circumstances can sometimes cause people to forsake values that would be cherished in calmer times, and that even fundamentally important rights may not always be popular. That's why they wrote into our nation's enduring charter -- the Constitution -- certain values and principles that must always be respected, no matter the political preferences of the moment. As the Supreme Court has said, "A citizen's constitutional rights can hardly be infringed simply because a majority of the people choose that it be." Indeed, just five years ago, Chief Justice John Roberts reiterated this point in a campaign finance case, saying that "the whole point of the First Amendment is to protect speakers against unjustified government restrictions on speech, even when those restrictions reflect the will of the majority."
The federal courts -- including the Supreme Court -- have always played a critical role in enforcing the Constitution's protections. Indeed, the nation's Framers created the federal courts in large part for that reason: they wanted them to enforce the Constitution's protections. As one proponent of the Constitution explained, the federal courts were granted broad powers to ensure that "the Constitution should be carried into effect . . . [and] justice equally done to all the community."
Perhaps the most significant recent example of the Supreme Court ensuring that "the Constitution should be carried into effect," even if it meant displacing majority will in some parts of the country, was last year's decision in Obergefell v. Hodges, which recognized a nationwide right to marriage equality. Before Obergefell was decided, many opponents of marriage equality argued that the question was one that should be decided by the political process and not by the courts.
Writing for the Supreme Court, Justice Anthony Kennedy rightly concluded that same-sex couples' fundamental right to equal protection and due process, guaranteed in the Constitution, means that they have a right to marry, no matter what the democratic processes might say. (Indeed, there's every reason to think that but for the Court's decision same-sex couples in some parts of the country still would not be able to marry. Notably, at the time the Supreme Court issued its decision, many of the states that denied same-sex couples the right to marry were the same ones that had prohibited interracial couples from marrying until, in 1967, the Supreme Court held that that prohibition violated the Constitution.)
And significantly the Court's decision in Obergefell was 5-4. If the Court had split evenly in the case, the effect would have been to deny countless same-sex couples the right to marry--a right to which the Constitution entitles them--and the practical consequences for those couples would have been significant. Some of these proponents of an eight-Justice Court suggest that we're better off if the Supreme Court doesn't act unless, as will now be necessary, there's at least "some agreement among justices of different political stripes." Surely, that's the ideal--and, indeed, all of the Justices should have been able to agree that the Constitution guarantees a right to marriage equality--but the rights of thousands of people should not depend upon that.
This idea that it will be good for the country if the Supreme Court's effectiveness is limited is an understandable response to the Roberts Court's aggressive rightward shift of the law in some areas, and efforts by political opponents of the Obama Administration to try to achieve through the courts (in immigration and health care, for example) what they could not achieve through the political process. But it's the wrong one. We should not limit the Supreme Court's ability to perform its critical role in our democracy. We should instead make sure it is composed of Justices who will faithfully apply the law. That's the Supreme Court's job. And Republican Senators should let it do it.
This piece is also crossposted at CAC's Text and History blog.
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