The practical implication of the idea that the Supreme Court is the highest authority in the land is tyranny. The ultimate supremacy of the “Supreme Court” means that the people are subject to unelected “experts” about the nature of justice.
Plato, and all of the western rationalists he has inspired, look forward to this kind of tyrannical government — the unlimited power of a supreme court as such. Rationalists believe there is some absolute essence (universal) of justice which only experts can get clear about.
But the problem with this picture is that the essence, in actual practice, is just a private standard of rationality. Experts disagree about the practice of justice because their intuitions about the “universal” are different, and there is no way to turn one expert’s intuition into some kind of public standard. The essence is the standard. It cannot be measured by itself. If there were only one yard stick in the universe, there would be no other yardstick by which to confirm its accuracy. Platonism (rationalism) finally results in everyone having their own yardstick, of different relative sizes, and simply claiming that one’s own is the absolute measure. How could the question be settled? Rationalism, ironically, leads to relativism. Western conservatives are confused about this. The very doctrine which so many conservatives embrace to suppress relativism, leads straight to it.
This traditional, Platonic, western rationalism is the cornerstone of the whole western judicial system as an aspect of republican government. All true republicans hate the election of judges by the people. The idea is that justice is an absolute, an essence, a universal, which transcends all traditional accounts of it. But it does not. Our account of it in the West springs directly from the Judeo-Christian tradition starting with the Ten Commandments. There is no universal standard of justice which speaks for itself. God had to describe it in His revelations. Reason has little authority as the source of our account of justice. It, too, has no universal essence agreed upon by everybody.
Christians have been all too seduced by the western notion of “universals,” of essences, which Plato instantly recognized could only be esoteric intuitions — a relatively private, expert language; a language shared by just a few enlightened leaders (which is supposedly what science is today). The Christian tradition is about the authority of a God revealed concretely in history; a God who provides us with a public paradigm of language which becomes the standard of moral authenticity for all healthy cultures. It is not about Platonic universals which take the place of God, to which the Greek “demiurge” was subject. In any event, no philosopher king or Supreme Court Justice ever walked out of the grave.
The impossibility of a Platonic republic without tyranny is why we say that the people are the highest authority in the land — meaning the people of the several states. And by the way, it is much more likely that the people, given their authority, will defer to God’s final authority, than that the US Supreme Court (or any expert) will do so. If am forced to make a choice, and these days I believe I am, I will go with the people and then struggle to get the people to defer to salvation history for their wisdom. If we put a religious expert in absolute charge, other religious experts will simply start disagreeing with him, just as they would in the Platonic republic. Protestants sometimes forget that their tradition is opposed to the idea of religious expertise. The Protestant Reformation supposedly repudiated the classical Catholic notion that priests had an occult and supreme understanding of Scripture.
At least the overthrow of the US Supreme Court, as our final authority, gives us the very real opportunity to impact the most important legal decisions by talking to our neighbors. This hard work with our neighbors is what we are tempted to shirk. I do not believe there is any silver bullet which will restore both freedom and moral order in America. There is only the hard work of making the Christian tradition dominant culturally through education. If the experts are sick, then we must make sure that the people do not believe in them. The religion of modernity is based on faith in human experts as faith in human reason. It will take time and effort to strip our neighbors of their faith in experts as the introduction to restoring their faith in our religious tradition.
If the US Supreme Court is the final authority about what is actually lawful (just) and what is not, then any court majority is actually the final expert and legislative authority, usurping the people themselves. So, above all else, we must induce a massive loss of faith in judicial experts.
Our traditional respect for the US Supreme Court has eroded because most of us are past believing that the bench can be an objective judge of the real meaning of the law, uninfluenced by any solidarity with any group and their tradition. A growing number of us do not believe that our judges are Platonic experts about justice.
Given a certain kind of US Supreme Court majority (probably just an overtly liberal majority) liberals could bring even the most extenuated, extreme and oblique legal theory to the court, about some merely convenient law, as an opportunity to order society to proceed in their preferred direction. I am talking about legal theories which are even more outrageous than the ones we are currently suffering under.
But then what does it mean, contra this kind of tyranny, for the people to be the final authority after the court has spoken? Does this mean that small scale or large scale disobedience is not actually a rejection of the rule of law? Does it mean that any administration should give any individual the slack to defy the court? In other words, does the supremacy of the people make every court irrelevant?
No. What we need is an understanding of what it means to interpret the law democratically. This is, of course, a notion that induces apoplexy in all rationalists and judicial experts.
Perhaps we need to start questioning the whole modern conception of a “court of justice.” Perhaps this notion is fraught with Platonic absurdity. We need a democratic understanding of what it means to interpret the law. This is hardly ideal. But the alternative, which we are experiencing now, seems to be worse — even less under our control as a supposedly free people.
The way the current system is supposed to work is that mass displeasure in a court decision can be resolved with new legislation — perhaps the repeal of the law which served as an opportunity for the judicial offense. But our current system is not very responsive. It can discourage even a solid majority with a series of exhausting process hoops.
The other problem is the abstract nature of the constitution itself. It is not really the legislation in question which has caused the problem, but the Supreme Court’s decision about its constitutionality. When the court says that legislation is constitutional it suggests that it is an extension of the constitution in which case even the repeal of the legislation will not eliminate the possibility of judicial enforcement over the long run. The decision is an invitation to keep reviving the same goals in different versions of the same legislation. There is little stability even after repeal because of the court’s power. Alternatively, when the court says that a law is unconstitutional it is telling us that no amount of legislation with the same goal will be enforced.
Why not restrict the US Supreme Court to deciding the constitutionality only of federal law and make those decisions subject to review by the people in national referendums? Let the state supreme courts determine the constitutionality of all state law without appeal and make those decisions subject, in all of our state constitutions, to review by the people of each state. The only power the democratic majority would have is the nullification of an already existing decision.
Of course, most of us favor federal incorporation when it protects our rights from dilution by state law — for example, our right to keep and bear arms. But this nationalization of justice has proven to be extremely dangerous. It puts one court of the federal government in charge of whether or not we have a right at all. What do we do when the Supreme Court tells us that the Second Amendment does not protect an individual right? In this case a democratic majority, nullifying that decision, might make revolution unnecessary. If, in the first place, the US Supreme Court is only allowed to adjudicate federal law, then state constitutions will still be in a position to protect our rights. Just as importantly, the scale of a revolution may only have to be as large as a state.
Liberals will point out that the incapacity of the US Supreme Court to review state law will end the federal government as we know it. This is true. It will return us to a federal system in which the federal government is there only to execute the functions delegated to it by the states without violating, at the federal level, any rights described in the amendments today. Each state will have to be the primary enforcer of rights. There will be a few tyrannical states to begin with. I sincerely believe that those states will be severely punished by emigration to other states and both financial and social failure. They will finally be controlled by the gravity of freedom.
The question we are examining here is simple: Does the US Supreme Court have too much power or not?
Just as some critics of the constitution, during the state ratification debates, predicted, the US Supreme Court has acquired way too much power. We must now do something to limit it.