All too often, the unelected experts charged with making those hard calls were not the non-political technocrats they were billed as but were pursuing a partisan end. Even an administrative state staffed by a mythical breed of pure-minded, disinterested bureaucrats would be subject to an almost irresistible tendency to metastasize. Regulation by agencies is relatively simple to promulgate—it merely takes the time and patience necessary to announce a rule, take comments, and show that the comments were in some way taken into consideration. Navigating bureaucratic procedure and red tape is easy compared with cobbling together a majority (or supermajority) of both houses of Congress and winning the president’s support. So with the growth of the administrative state, the volume and scope of federal law also grew. Issues that once were left to the states or the people were now literally made into federal cases.
As Congress’s ability to legislate has declined, the temptation to turn to simpler ways of governing has grown. Unable to work with Congress, President Obama famously turned to his “pen and phone,” that is, to executive orders and administrative agency action. Another alternative to dealing with a gridlocked Congress has been the courts, which themselves have abdicated some of their own authority.
In the 1980s, the Supreme Court began attempting to extract itself from an ever more complicated regulatory state by deferring to agencies when they interpreted statutes and, eventually, their own regulations. It may have saved the courts from making hard legal calls, but it put those decisions in the hands of the regulators—a heavy thumb on the scale for the bureaucrats whenever they were in a lawsuit. In the resulting system, in which all ties were decided in favor of government regulators, it was difficult for courts to be impartial interpreters of the law.
While abandoning some of their proper role, courts have also usurped the powers normally reserved to Congress. The legislative process is notoriously messy, and nobody thinks the sausage factory produces a perfect product every time. So when a judge is faced with a law that seems to function poorly, there is a temptation to step in. The legislators appear sloppy or foolish or, if it is an old law, blinded by the prejudices of their time. A nip here, a tuck there, and the law will function so much better. But the Constitution doesn’t establish the judiciary as the copy editors of the legislature. They are supposed to apply the law, not improve it.
There is a saying among lawyers that “hard cases make bad law.” It arises from the natural instinct of the judge or jury to bend the law to reach the result that their heart tells them is right. But in the bending, the law is deformed, and ever more pronounced departures from the original language follow.
Much of the temptation for courts to correct, rewrite, update, or amend statutes, and even the Constitution, arises from the perception that change through the proper channels is not feasible. Many legislators are content for the courts and the agencies to do their hard work for them. But some legislators also welcome judicial editing of the law to implement policies that do not have the broad support necessary to make it through the legislative process. When Senator Klobuchar questioned Judge Neil Gorsuch during his confirmation hearings about his ruling that the Religious Freedom Restoration Act (RFRA) covers corporations, he carefully explained the federal Dictionary Act, which defines “person” as it is used in federal legislation, and pointed out to the senator that if she thought the statute’s coverage of corporations was a bad idea, it was her job as a legislator to remedy that: “Senator, if in RFRA again, if this body wishes to say only natural persons enjoy RFRA rights, that is fine, and I will abide that direction. I am not here to make policy; I am here to follow it.”35
In fact, the Democrats did try to amend RFRA, but the effort went nowhere. To some, that is precisely the kind of situation in which the courts should intervene to implement the “correct” or “just” policy that politics failed to achieve. But however frustrated a minority of the Congress and the country may be with RFRA, those frustrated persons are still just that—a minority. If the majority of the country doesn’t want to change a valid law, the Constitution does not give the courts authority to second-guess it.
Sometimes Congress has exercised its authority to change a law after the Supreme Court has recognized that judicial fiat is not the constitutional means to do so. When Lilly Ledbetter, shortly before her retirement, sued her employer for paying her less than it paid her male counterparts, her action was found to be barred by the statute of limitations. When the Supreme Court held that the statute required her case to be dismissed, the political reaction was immediate and hysterical.36 The majority was excoriated for not fudging the statutory deadline in Ledbetter’s favor. In this case, however, the desired change had the support needed for legislative action. Congress passed the Lilly Ledbetter Fair Pay Act of 2009, which starts the limitation period over with each new paycheck. That’s exactly the type of response our system is designed to produce. Congress wrote a law. When the Court applied it as written, a new Congress wanted a different result and amended the law.
The same solution is available for constitutional disputes. Unhappy with what the Constitution says about speech, guns, abortion, or the scope of federal power? There’s an amendment process for that—intentionally difficult, but not insurmountable. The Constitution has been amended more than two dozen times, and it could be amended again if an issue were sufficiently important to the American people. It is no answer to say that causes that cannot garner the support of a broad majority of Americans should instead be enacted by a bare majority of unelected judges.
The notion that judges are competent to make even small improvements in the law leads almost imperceptibly to a much more expansive agenda. Once the judge is unshackled from the text set down by the people’s elected representatives (or their unelected regulators), he will wander wherever his own judgment leads him to implement the stated or even unstated intent of the law.
This flexible legal approach, applied to the Constitution, has resulted in the creation of broad new rights uncontemplated by those who framed and ratified the original document and its amendments. These new rights, in turn, have increased the range of activity governed by federal law. The influence of federal law, and of the courts that interpret that law, is therefore greater than it ever has been in history.
As the unelected bureaucrats of the burgeoning administrative state exercise de facto legislative power, the only remaining constraint on them is constitutionalists in the judiciary. At the same time, activists on the left cajole the judiciary to impose their favored policies—including revolutionary social changes—by an “exercise of raw judicial power,” as Justice Byron White described it, and since the Warren Court era, liberal judges have been happy to oblige.37
Is it any wonder, then, that the stakes in judicial appointments, especially to the Supreme Court, have become so high? Rather than being “the least dangerous branch,” as Alexander Hamilton predicted, the judiciary has become the forum where philosopher kings impose the final decision in our most divisive political and social disputes.38
Justice Scalia, observing the ever-intensifying confirmation process for Supreme Court justices in 2012, explained that the process has become more political because judges have become more political:
[A]s much as I dislike the spectacle of—of confirmation hearings now, I prefer them to the alternative. As long as the court is revising the Constitution, by God, the people ought to have some say and they ought to be able to ask the nominee, you know, what kind of a Constitution are you going to give us? That’s the most important question. Why shouldn’t they be able to ask that? So you know, I don’t like it, I would like to go back to the old system, but not if the Supreme Court is rewriting the document.39