The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The New York Times has just posted a Room for Debate Forum on whether the Supreme Court is too powerful. My own contribution argues that the answer is "no." Despite its many flaws, the Court still plays a valuable role as a check on enormous power of modern state and federal governments. Here is a brief excerpt:
The Supreme Court gets many things wrong. Yet America would be a far worse society without it. If judicial review were seriously curtailed, the executive and legislative branches of government could ignore most constitutional limits on their powers. This is a particularly grave danger in a world where government is as large and powerful as it is today—spending nearly 40 percent of our gross domestic product, and regulating almost every aspect of human activity. Without an independent judiciary to check their vast powers, federal and state governments would often be free to use their full might to censor opposition speech, confiscate property and otherwise persecute those they disapprove of. Avoiding that is well-worth the price of putting up with a good many flawed judicial rulings.
The other participants in the Forum are legal scholars Richard Thompson Ford (Stanford), Barry Friedman (NYU), Heather Gerken (Yale), Michael Klarman (Harvard), Larry Kramer (former Dean of Stanford Law School), and Suzanna Sherry (Vanderbilt). With the exception of myself, the other participants are all leading left of center academic experts on constitutional law. It is interesting to me that there is this much disagreement over the Supreme Court's role among experts who have many political and moral commitments in common. We clearly live in a time when the Court's role is the subject of great controversy—not only between right and left, but between different groups within each of the respective ideological camps.
Friedman and Klarman correctly emphasize that the Court's rulings are often constrained by public opinion. But I think they somewhat understate the extent to which the Court sometimes makes important right-protecting decisions that go against majority opinion. Co-blogger David Bernstein and I discussed this issue in some detail here.