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You should decide now what kind of Supreme Court you want.  Don’t wait until after the Justices hand down the Term’s major decisions.  That will be too late.  Make a real choice now about how much power you think the Court should have – before your judgment is skewed by either elation or outrage at the results.

The Justices are being asked to strike down important federal laws that passed Congress with broad majorities.  Section 5 of the Voting Rights Act requires states and local governments with a history of discrimination to get approval from Washington for all changes to their voting laws and practices, no matter how minor.  This historic, foundational piece of civil rights legislation was recently re-enacted almost unanimously.  The Court previously upheld it.  A ruling now going the other way would be quite “conservative.”

Section 3 of the Defense of Marriage Act (refusing to recognize state same-sex marriages for purposes of federal law) was enacted with broad bipartisan support, including from then-President Bill Clinton.  At the time, very few people seriously believed it was unconstitutional.  Striking it down would be a “liberal” move.

But here’s the thing.  The challengers in the two cases are ideological opposites but have very similar constitutional theories.  They say that the laws violate federalism.  A state has a basic right to make rules about voting and to decide who among its residents is married.  The federal government cannot lightly reject those decisions – or so the arguments in the cases go.

For same-sex marriage advocates, the tension can go even deeper.  If DOMA is struck down on states’ rights grounds, what does that mean for California’s Proposition 8, that state’s ban on same-sex marriage?  Would it mean that the Court should hold that California has the right to define marriage for its residents as excluding same-sex couples?

But what if progressive same-sex marriage advocates instead argue that both DOMA and Prop 8 violate the right to equal protection.  Though the Constitution’s framers would not have recognized a claim of discrimination against homosexuals, society has evolved.  We need to look at people as individuals, not members of groups.  That’s a reasonable argument.  But it is also the theory of conservatives who assert this Term that affirmative action violates equal protection because it groups us by race and amounts to racial discrimination.

More broadly, all these cases invoke the same basic power:  judicial review.  It’s the authority – which the Supreme Court claimed for itself early in the nation’s history – to declare that a law passed by Congress (or a state) is void because it violates the Constitution.

The authority is a backstop to our democracy.  Every government official is duty-bound to follow the Constitution.  But too often they fail.  And the courts are there to protect our rights.

But it can be a scary power.  When the Supreme Court interprets the Constitution, that is the final word.  The President and Congress can’t overturn its decision.  The only option is to amend the Constitution, which is basically impossible.

Unfortunately, the Constitution is a powerful tool but doesn’t tell the Court how to resolve the arguments in the Voting Rights Act, same-sex marriage, and affirmative action cases.  The text was written in general terms – for example, “equal protection of the laws” – leaving it sometimes clear as mud.  So the Justices have to rely on precedent and history and judgment.

But it is easy to treat decisions with which we disagree as a power grab, rather than principled judicial decision making.  So when the Court strikes down laws of Congress or overturns prior precedent, we cry “judicial activism.”

That isn’t true or fair.  Yes, some of the Justices are quite conservative and others are reasonably liberal.  For several, it can depend on the issue.  But having an “ideology” just means that the Justices have a principled approach interpreting the law.  It doesn’t mean that they are trying to impose their will or worldview.

In fact, the judiciary – and the Supreme Court in particular – is the part of our government that seems to be working the best.  The Justices disagree greatly about these important questions.  But no serious and knowledgeable person doubts that they all work incredibly hard and in total good faith to try and figure out the right answer.

And sometimes, it seems, the Court stays its hand in favor of the other branches of government, which may be better at working out hard social problems.  That is one way of looking at the Chief Justice’s vote in last Term’s health care case.  That more modest approach may be a good response to very aggressive uses of judicial review by both liberals in the 1970s and 1980s and conservatives more recently.

But again, the Constitution doesn’t spell out the answer.  You should decide now how you feel about this power.  How comfortable are you with nine unelected individuals who do not have a great deal of experience addressing social problems and weren’t selected for that skill shaping the course of the nation?  On the other hand, would we really want a system in which Congress or the states could pass laws that the Court could not find unconstitutional?  Are there really conservatives who don’t want the courts to enforce the Second Amendment and property rights, liberals who don’t want to protect the Equal Protection Clause, and independents who don’t think the judiciary is essential to access to the ballot box?

If the power of judicial review is a fixture of our law, then we have to be prepared to accept that our principles take us to results we sometimes don’t like.  A Court that is enforcing the Constitution may strike down laws we think are good.  A broad theory of states’ rights may invalidate both DOMA and Section 5 of the Voting Rights Act and uphold gun regulation.  An aggressive application of equal protection may strike down both Prop 8 and affirmative action.

That does not mean we have to roll over.  When we disagree with decisions, another great feature of our democracy is that we can say so.  And a later generation of Justices may reconsider and reach the opposite result.

But when we do disagree with the Court, it needs to be about the substance of the rulings.  If we think DOMA or the Voting Rights Act is constitutional (or the opposite), we have to make substantive arguments and help the nation reach the right answer.  And we have to do better than the claim that we think that the Constitution’s meaning just happens to track our personal sense of a fair society.  Assuming we do need and want the Justices to have the power of judicial review, we can’t fairly complain that they are just activists.

(This is the third of three pieces about broader issues raised by the Term’s major cases.  The two others are History and Testing.)

Recommended Citation: Tom Goldstein, Power, SCOTUSblog (Jun. 20, 2013, 6:49 AM),