NRPLUS MEMBER ARTICLE ‘T he problem of the Supreme Court is that it is a powerful and unaccountable branch of government.”

For most of the last 50 years, one would have assumed this quote to be from a political conservative, as the modern Right often advocates “judicial restraint” and seeks out judges who defer to and respect the people’s will as expressed through the states and other branches of the federal government.

However, the quote doesn’t come from someone affiliated with the Federalist Society, the Heritage Foundation, or the Republican Party. Instead, it comes from New York Times columnist Jamelle Bouie as he argues for the Democratic Party to engage in a more forceful delegitimization of the current Court. Bouie defends this strategy by making the deeper, more long-standing claim that the Supreme Court usually has been the enemy of progressive principles and policy in the course of American history. Instead, he argues, the justices more often have protected “the rights of property and the prerogatives of the privileged above all other concerns.” He maintains that the progressive tilt of the Court in the 1950s and 1960s, as well as other judicial victories since, have been an aberration.

Bouie’s attack on the Court betrays an assumption too prevalent across the partisan divide: Courts are “activist” when they decide against my policy preferences and “restrained” when they agree with me. He sees the size of the Court’s legitimate power as waxing and waning based on whether it conforms to progressive ideas and outcomes.

But the judicial branch does not exist to further public policy — left, right, or other. That’s the task of the legislative branch and, to some extent, the executive offices. Congress and state legislatures turn the people’s will into binding laws. The national and state executives play some role in that enactment but also the primary role in its enforcement. To support those duties, members of those branches are voted in by the people.

The judiciary neither writes nor enforces the law. Instead, judges interpret and apply the already-existing law to resolve legal disputes. In one sense, Bouie is right that federal judges are unaccountable to the people since they never face election or reelection to their office. Yet the courts are accountable to the people as the people manifest their will through the legislative and executive branches in the law. This distance from the people but proximity to their laws maintains the foundation of popular rule while seeking to ensure that rule is as fair and reasonable as possible. Judges’ insulation permits them to apply the people’s laws as written. Doing so helps judges give unpopular persons equal legal treatment, rather than buckling to immediate, passionate, even mob-like reactions to events.

What Bouie gets right is that the Court tends to be “conservative” in an important sense. Historically, it has tended to be an institution that leans toward preserving existing interpretations and circumstances. Yet what he gets right in observation he stumbles over in subsequent condemnation. Even the progressives of the early 20th century saw that political systems needed some institutions that leaned toward change and others toward stability. Though they wielded that argument in criticism of the American Founding, the Constitution itself more than accounts for those needs: The agents of change are found in the legislative power, dependent as it is on the people’s contemporary will through frequent elections. The Court is by nature an agent of continuity and stability due to its general task of interpreting and applying only existing law.

Moreover, our Constitution enhances this tendency. That document is the supreme law of the land and, by its own design, hard to amend. The Court’s peculiar role as interpreter and applier of this law cements its nature as a “conservative,” or preserving, institution. That role, too, is generally a good one. The Court protects constitutional rights that the Constitution has placed outside the reach of potentially turbulent and oppressive political forces. The judges can also keep us committed to the procedures and structures that the Constitution mandates for decision-making, especially when politicians seek to subvert them for immediate, temporary advantage. And judges can point us to the principles and practices found in our Constitution that we, thus, ought to hold in common.

We must reject Bouie’s and others’ efforts to delegitimize the Court, for it relies on an underlying mischaracterization of the judiciary’s role in our system. Instead, we must defend the Court’s purpose as the preserver of the rule of law, especially our Constitution. Like the other branches, the Supreme Court has been far from perfect in its role. But those imperfections call for its re-adherence to the Constitution, not its delegitimization.