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New York Times
15 Apr 2023

NextImg:How Much Power Should the Courts Have?

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The Israeli Supreme Court last month became the subject of a remarkable clash over its role in the country’s democracy. Prime Minister Benjamin Netanyahu and his governing coalition proposed a change in how judges are appointed in a measure that also stripped them of some essential powers. Netanyahu, who leads a right-wing government with ultra-Orthodox partners, said he was “strengthening” democracy by giving elected lawmakers more say over unelected judges. But many Israelis, especially secular and moderate Jews, feared the opposite. Hundreds of thousands of protesters blocked the highways; military reservists refused to report for duty, and a general strike loomed. The unrest forced Netanyahu to back down for now.

The court’s defenders had reason to think the country was at a precipice. Over the last dozen years, in places like Hungary, Poland, Turkey and Venezuela, a key step toward one-party rule, toward a weakened democracy, has been to diminish the judiciary.

When Viktor Orban and his conservative party, Fidesz, won the elections in 2010 for prime minister and control of Parliament, the Constitutional Court was Hungary’s most respected political institution. Over the previous two decades, the court helped the country transition from Communist control to full-fledged democracy, building a new legal order and serving as the primary check on the single house of Parliament. But the court’s strength also made it a target. Orban and Fidesz amended the Constitution to give Parliament — rather than an independent body — the power to approve new judicial appointments. Another amendment curtailed judicial review — the power of the Constitutional Court to examine and overrule the decisions of the elected branches of government.

It was hard to see the slide toward autocratic rule at the time. Unlike a military coup — troops in the streets, dissidents beaten — a legal coup can appear to be just a set of technical-sounding touch-ups. Orban also said he was “strengthening” democracy, and the Hungarian press freely reported on his proposals. He and Netanyahu compared giving members of their Parliaments more control over judicial appointments to the power that the U.S. president and Senate have in nominating and confirming judges.

But democracies vary, and Israel and Hungary lack the checks and balances of the American system. For example, neither has two houses of Congress that can block each other, or a clear separation between the executive and legislative branches, or a federalist system of states or provinces that retain significant powers. In the absence of such checks, adopting political control over judicial appointments would amount to what the legal scholars Rosalind Dixon and David Landau call “abusive borrowing.” Or as Kim Lane Scheppele, a sociologist at Princeton, wrote of Orban, autocrats can rise by “combining the bits and pieces of perfectly reasonable institutions in monstrous ways.”

The lesson is an old one: Majority rule is a necessary ingredient of democracy, but it can’t be the only one. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands,” James Madison wrote in The Federalist Papers in 1788, “may justly be pronounced the very definition of tyranny.” To sustain themselves, democracies have to maintain the conditions that allow power to change hands, including the rule of law, rights for minorities and the building blocks for effective opposition, like a free press.

The structural changes to sideline national high courts like those that Hungary made and Netanyahu’s coalition proposed point to the ways in which the main tool of democracy — majority rule — can be used to undermine it. But a judiciary that is too powerful can also pose its own set of dangers to a healthy democracy. Perhaps more than any other country, the United States has a system of judicial review that locks into place the court’s interpretation of the meaning of the Constitution even when it’s out of step with popular will.

The Constitution offers voters a course correction: elections. If the Supreme Court imposes views that the public rejects, voters can choose a new president to nominate new justices and a new Senate to confirm them. But it’s a blunt instrument, because elections turn on a range of issues. And the American system has a singular feature, life tenure for federal judges, that slows down and randomizes their rotation.

The Supreme Court’s rulings over the past couple of decades on campaign finance, voting rights and redistricting have repeatedly undercut Congress and had the likely effect of tilting political power toward wealthy donors and skewing representation through gerrymandering. This term, in the case Moore v. Harper, the court could upend how disputes over casting and counting ballots are resolved, a year before the 2024 election. It’s conceivable that the U.S. Supreme Court could help bring democracy to the brink not because it’s too weak, as other countries have experienced, but because it’s too strong.

The Supreme Court helped make the United States a truer democracy in the 1960s, a departure from its longstanding record of obstructing Congress from doing so. In Reynolds v. Sims, in 1964, the justices held that the constitutional right to equal protection required states to draw maps with roughly equal numbers of people in each legislative district. “Reynolds is the most important case in the Democracy canon,” Guy-Uriel E. Charles, a law professor at Harvard, and Luis Fuentes-Rohwer, a law professor at Indiana University, Bloomington, wrote in The Alabama Law Review in 2015.

Almost every state redrew its electoral maps within two years to follow the rule of “one person, one vote” set by the court. Because more populous cities gained representation with increasing numbers of Black and immigrant residents, the court’s stand for political equality also furthered racial equality.

Congress was as important as the court in transforming democracy in the civil rights era, argues Franita Tolson, a law professor at the University of Southern California who is writing a book about congressional power over elections. Congress ended poll taxes and literacy tests — the barriers of Jim Crow — by passing the Voting Rights Act in 1965.

The Supreme Court ruled the following year that the act had a valid basis in the Constitution. Over the next decade, the court’s reputation for bold decision-making grew. In the wake of Roe v. Wade, which in 1973 established a constitutional right to abortion, conservatives denounced the court for “judicial despotism,” in the words of Robert Bork, who failed to win confirmation to the Supreme Court in 1987. But the legal academy, as it grew increasingly liberal, largely celebrated the court’s strong role. The legal philosopher Ronald Dworkin proposed that court decisions might provide “a superior kind of republican deliberation” than debate in the context of legislation or elections. “For the first and only time in American history, we had a progressive activist court, and young progressive academics loved what you could do with it,” says Larry Kramer, the former dean of Stanford Law School and president of the Hewlett Foundation. “They embraced judicial supremacy.”

American law professors had a strong hand in exporting the U.S. model abroad as countries resurrected their legal orders in the wake of fascism, colonialism and later Communism. At the end of World War II, only a dozen established constitutional democracies remained standing. Over the next decades, new constitutions were written and adopted in India, Africa, Latin America and Southern and Eastern Europe. As in Hungary, countries relied on courts, based on the new constitutions, to enforce rights and check majority rule. By 2003, the number of constitutional democracies among the member states of the United Nations grew to 121.

Many of the new constitutions gave the high courts clear authority to safeguard the rights of minorities and the democratic system. Some of the courts vigorously wielded this power to set aside majoritarian decisions that appeared to undermine democracy over the longer run. In 1998, after a referendum for secession nearly passed in Quebec, the Canadian Supreme Court ruled that such a vote would not be constitutionally sufficient because it violated the principles of federalism and the protection of minorities. When lawmakers in Colombia proposed a referendum in 2010 allowing President Álvaro Uribe to run for a third term, the Constitutional Court ruled that a president who served for 12 years would amass too much power, through appointments, over the institutions charged with checking him. The South African Constitutional Court asserted its independence from the ruling African National Congress party at several critical junctures, allowing corruption charges to proceed against a former president.

These courts appeared to pick their battles carefully. “If courts abdicate their responsibility to protect democracy, they’re not doing their job,” says Dixon, a law professor at the University of South Wales in Australia. “But if they are too robust about confronting the political branches, they’re almost certain to be subject to attack and derailment in the long run. They have to allow society to recalibrate so that people don’t see the court as a massively political institution.”

The Israeli Supreme Court became vulnerable to attack in part because the country does not have a constitution granting the court the power to interpret it. When Israel was founded in 1948, efforts to draft a constitution broke down. Leaders of the dominant and secular Labor Party saw little reason to limit their own power and didn’t want to jeopardize their shaky accord with the ultra-Orthodox parties, which wanted religious law to be sovereign. In the 1980s, as Israel’s Jewish population became more religious and traditional, secular Israeli law professors drafted provisions for a constitution, consulting with their American peers and Aharon Barak, an Israeli Supreme Court justice. In 1992, the Knesset passed a Basic Law (a statute setting a national standard) that guaranteed dignity and liberty. Barak proclaimed a “constitutional revolution” with new sway for the judiciary. “Nothing falls beyond the purview of judicial review,” he wrote.

The Israeli Supreme Court has tried over the years in various ways to mediate the tension between the country’s twin commitments to being both a Jewish and a democratic state. It ruled in favor of gender and sexual equality and the status of Conservative and Reform Jews, rejecting ultra-Orthodox positions. But it has backed away from the role of protecting Palestinians in Israel, who lack equal rights, and Palestinians in the West Bank, who have no vote in Israeli elections.“The court has not said, ‘Our role is to ensure the rights of those who are least able to protect themselves through the democratic process,’” says Omar Dajani, a law professor at the University of the Pacific. “Instead, the court says again and again: ‘The state is in a fragile situation. We are deeply mindful of the security concerns it faces. We’re going to create a framework for balancing interests.’ And then the balancing almost inevitably leads to privileging state interests over Palestinian interests.”

The court seems to be taking into account right-wing frustration in other ways. “Over the last 20 years, the Israeli Supreme Court, while issuing valuable rulings on the rights of women, L.G.B.T.Q. people, refugees and asylum seekers, has actually been in gradual retreat from the Barak revolution and the all-out progressive line,” says Ran Hirschl, a professor of political science and law at the University of Texas, Austin, and author of the 2004 book “Towards Juristocracy.” Yet the court’s image as secular and elite remained a potent political tool for the right.

The U.S. Supreme Court is hearing two election-law cases this term with major implications for the democratic process. In Merrill v. Milligan, the conservative majority appeared ready, at the oral argument in October, to once more undercut the Voting Rights Act — which remains only half-standing since the court’s 2013 ruling in Shelby County v. Holder, ending the Justice Department’s role in preapproving changes to state and local election procedures. In Moore v. Harper, the court is considering a theory that would take away from state courts the power to rule on redistricting or challenges to election results.

The case concerns a 2022 North Carolina Supreme Court decision to strike down a state redistricting map after finding that it was a partisan gerrymander in violation of the North Carolina Constitution. The lawyers for the plaintiffs, who are a group of North Carolina voters, argued that the court did not have the authority to do so. They cited the “independent state legislature” theory, which claims, based on a reading of the Constitution’s elections clause that the Supreme Court has never adopted before, that only legislatures can set election rules. Proponents of the most muscular version of this theory say the clause leaves no role for governors, election administrators or nonpartisan redistricting commissions — and even forecloses the usual review by state courts. In other words, state legislatures would have nearly unchecked power over federal elections.

At the oral argument in December, several justices seemed skeptical that a state “can do whatever it wants,” as Chief Justice John G. Roberts Jr. said. But Justice Brett M. Kavanaugh floated the idea, from a concurrence in Bush v. Gore by Chief Justice William H. Rehnquist, of augmenting the authority of federal courts — including this Supreme Court — “to make sure that the state court had not significantly departed from state law.” This approach, too, would weaken a basic tenet of federalism: the North Carolina court’s power to decide the case based on its own Constitution.

It’s the kind of case that shows that a powerful court can be a double-edged sword. “It has been 50 years since the Warren court,” Kramer says, referring to the leadership of Chief Justice Earl Warren in the 1960s and ’70s. “But the left is still romantically entranced by the idea the court will protect us, when really it throws us an occasional bone while it tears apart everything else we care about.” Perhaps the most egregious example of the court’s role in electoral politics was Bush v. Gore, in which justices nominated by Republicans overturned the Florida Supreme Court to stop the recount of ballots in the state, effectively handing the election to the Republican candidate for president.

The way to ensure that social change endures, Kramer argues, is to persuade the public and win elections, as advocates of abortion access have done in state ballot initiatives since the court overturned Roe v. Wade last summer. On some issues, however, court rulings have helped move the public, feeding the democratic process. Courts “can amplify voices marginalized in politics,” the Yale law professors Douglas NeJaime and Reva Siegel wrote in The New York University Law Review in 2021. “Don’t miss the mobilizing effect of going to court,” NeJaime says. “That’s the L.G.B.T. story.” The right to same-sex marriage first gained traction in state court and then won support in state legislative battles. In 2015, the Supreme Court enshrined the right in the Constitution in Obergefell v. Hodges. And last year, Congress passed the Respect for Marriage Act, making marriage equality federal law with bipartisan support.

In response to Democrats’ concerns about the Supreme Court’s power and composition, the Biden administration set up a presidential commission in 2021 to consider proposals for judicial reform. Increasing the number of justices on the court got the most attention. But scholars tend to be skeptical. Adding justices could lead to a tit-for-tat between the parties, with each packing the court when it’s in power.

The commission heard other recommendations concerning the pressing question: Is the U.S. Supreme Court too supreme? Proposing term limits, Dixon pointed out that terms of eight to 12 years for judges have become the global best practice. (Changing life tenure for justices might require a constitutional amendment, but some scholars have proposed a workaround, like moving justices to lower courts at a designated point to serve out their life tenure.) Scheppele suggested giving Congress the power to override Supreme Court rulings in constitutional cases or making it easier to amend the Constitution. That could reduce the political heat of judicial confirmations, she says. “The Supreme Court’s interpretation of the Constitution would not any longer be the primary roadblock in the way of modernizing it.”

Even without reforms to the court, Congress has the power to respond to its rulings far more than lawmakers have done lately. Nothing, theoretically, prevents Congress from passing a new Voting Rights Act, for example, or a law protecting against partisan interference in the administration of elections. (Congress did update the law for counting electoral votes after the violence of Jan. 6.)

But our political reality makes that unlikely. “We’re in a historically unusual period of very thin and unstable partisan majorities,” says Keith Whittington, a politics professor at Princeton. “That’s what’s most distinctive about our politics. It gives the court a lot of leeway to do things without having to worry about Congress pushing back.” If Republicans dominated elections for a sustained period, the conservative majority on the court would have even more freedom. “If Democrats gained a stable and large majority,” Whittington says, “the conservative majority on the court would either have to adjust its behavior, or it’s likely that Congress would slap it down.”

In the absence of such congressional determination, however, the Supreme Court can continue to mold how voting, redistricting and counting ballots take shape. And that has implications beyond our own borders. The signals the court sends about what it takes to sustain a healthy democracy affect courts internationally. “The world is watching,” Dixon says. “And this court has to do more to make sure it doesn’t destroy the slim role the judiciary plays around the world in protecting the democratic core.”

Emily Bazelon is a staff writer for the magazine and the Truman Capote fellow for creative writing and law at Yale Law School. Her article ‘‘The Battle Over Gender Therapy’’ was a finalist for a 2023 National Magazine Award in the public-interest category.