National Review’s Ramesh Ponnuru wrote a mischievous piece yesterday at Bloomberg (reposted today by AEI, where he’s a visiting fellow). Entitled “The Supreme Court: No friend of freedom,” the article challenges the “story” that “the Supreme Court has played a crucial, maybe the crucial, role in our country’s progress toward ever greater freedom and justice.” In truth, Ponnuru writes, “the story is false. In our actual history, the court has often been a bystander as freedom and equality have grown — and has frequently been a villain.”
The history Ponnuru then recounts is, not surprisingly, selective – and subject to rather of a different interpretation than he gives it. Thus, during our first 70 years the Court overturned only two federal laws, he tells us, and struck down only 34 state laws and one city ordinance. What he doesn’t tell us is how little the Court had to do during its early days. (Our first two chief justices, John Jay and Oliver Ellsworth, stepped down largely because they were bored.) And the reason the antebellum Court was not more active in defending freedom was, first, because at the federal level bills often didn’t get out of Congress – members took the doctrine of enumerated powers seriously – and when bills did get out, presidents often vetoed them; second, accordingly, most government took place at the state level; and, third, the Bill of Rights did not apply against the states until after the Fourteenth Amendment was ratified in 1868.
Moreover, Ponnuru writes that “on the first occasion [on which Congress overturned a federal statute], the court said Congress was giving the federal judiciary more power than the Constitution allowed.” True. But that’s hardly an example of the Court’s not having been a friend of freedom. Ponnuru’s spin gets it exactly wrong. In limiting its own power in Marbury v. Madison the Court was establishing the fundamental principle that we live under a government of enumerated and thus limited powers, leaving us otherwise free to live our lives as we wish. What could have been a more important decision securing freedom?
Ponnuru goes on to cite a number of bad Court decisions, which is easy enough to do, the thrust of his argument being that Brown v. Board of Education in 1954 has misled us into thinking that the Court is our savior against majoritarian tyranny when in fact it has been the political process, as in the Civil Rights Act of 1964, that has played a far larger role in securing our liberties.
If you’re selective, you can make a case for either side, of course, and Ponnuru is that, ignoring many of the criminal law decisions that have advanced liberty, never mentioning decisions like Griswold v. Connecticut (the right to buy and use contraceptives), Loving v. Virginia (striking state anti‐miscegenation statutes), and Lawrence v. Texas (striking state sodomy laws). He even claims “we don’t have the court to thank for free political speech.” True, the Court hasn’t been the best guardian of that form of political speech that takes the name of campaign finance, but it’s been far better than the political branches, especially lately. The truth in all of this, of course, is that both the political and the nonpolitical branches have played their parts in protection freedom. That’s part of the genius of our system.
So what is the point of Ponnuru’s “story”? It starts out, no surprise, with the same‐sex marriage cases the Court heard last week. But it concludes on this note:
The mythology of a heroic court distorts our understanding of U.S. history, making us forget that for the most part we secured our status as a free people outside the courts. It makes us more averse to proposals to reduce judicial power than we otherwise would be. … The justices might be more likely to stick with a modest conception of their role, however, if they remember that the court has much to be modest about. (emphasis added)
This is, in short, one more plea for “judicial restraint” – perhaps, even, for “proposals to reduce judicial power.” That’s not what Madison had in mind when he hoped for the courts that “they will be an impenetrable bulwark against every assumption of power in the legislative or executive.”