Why a pro-liberty Supreme Court wouldn’t just defer to Congress

The September issue of National Affairs has a valuable essay from conservative (and Pulitzer Prize-winning) commentator George Will on majority rule and judicial engagement — two timely topics, given Donald Trump’s upset win of the GOP primaries and the increasingly widespread argument that #NeverTrump Republicans should hold their noses and vote Trump because of the Supreme Court.

In his piece, Will raises a number of questions worth consideration from anyone following this crazy election and current affairs more generally, like:

• As government expands in size and scope, does it reflect the majority view more effectively?
• Do we believe that all — or even most — of what the government does reflects the will of the majority?
• Must courts (and particularly the Supreme Court) defer to the legislature as the voice of the (majority of the) people?
• Is the purpose of the Constitution merely to translate majority opinion into law?
• If not, what is the relationship of individual rights and freedoms to majority rule?

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For Will, the answers are no, hell no, no, no and always err on the side of liberty.

He makes a compelling case. The article is at its most evocative when Will highlights absurd regulations that impinge on individual rights in clear service to special interests, not the will or benefit of the majority:

Sandy Meadows was an African-American widow in Baton Rouge. She had little education and no resources, besides her talent for making lovely flower arrangements, which a local grocery store hired her to do.

Then Louisiana’s Horticulture Commission—there is such a body, for rent-seeking reasons—pounced. It threatened to close the store in order to punish it for hiring an unlicensed flower arranger. Meadows tried but failed to get a license, which required her to take a written test and to make four arrangements in four hours. The adequacy of the arrangements was judged by licensed florists who were acting as gatekeepers to their own profession, restricting the entry of competitors.

Meadows, denied re-entry into the profession from which the government had expelled her, died in poverty. But the people of Louisiana were protected by their government from the menace of unlicensed flower arrangers.

The government action that ruined Meadows’ life and livelihood “and thousands like [it] from coast to coast, should be, but usually are not, considered unconstitutional,” Will writes. “They should be struck down even though they have issued from majoritarian processes—from elected officials or from regulatory agencies created by elected officials.”

And that’s where the issue of SCOTUS and other judicial bodies comes in. Conservatives and some libertarians have long decried “activist” judges, arguing that law should be crafted in the legislature, not from the bench.

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Will doesn’t advocate judicial lawmaking — in fact, he decries judges who create “rights that are neither specified in nor implied by the Constitution” — but he is persuasive in his contention that a properly engaged judge prizes liberty over simple deference to majority rule (emphasis added):

The principle of judicial restraint, distilled to its essence, frequently is the principle that an act of the government should be presumed constitutional and that the party disputing the act’s constitutionality bears the heavy burden of demonstrating the act’s unconstitutionality beyond a reasonable doubt. The contrary principle of judicial engagement is that the judiciary’s principal duty is the defense of liberty, and that the government, when challenged, bears the burden of demonstrating that its action is in conformity with the Constitution’s architecture, the purpose of which is to protect liberty. The federal government can dispatch this burden by demonstrating that its action is both necessary and proper for the exercise of an enumerated power. A state or local government can dispatch the burden by demonstrating that its act is within the constitutionally proscribed limits of its police power.

Justice Don Willett of the Texas Supreme Court has cogently addressed, and largely dissolved, the supposed counter-majoritarian difficulty. There are, he says, two different but not equal majorities involved. He begins, as judicial review began, in 1803, with Marbury v. Madison, in which Chief Justice John Marshall wrote: “The powers of the Legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written.” In distinguishing between proper judicial deference to legislative majorities and the dereliction of the judicial duty to police majoritarian excesses, Willett says that in our democracy the legislature’s policymaking power, “though unrivaled, is not unlimited.” The Constitution is supreme. And “desirable” is not a synonym for “constitutional.”

With one SCOTUS seat vacant and several more likely to turn over in the next four or eight years, Will’s full argument is well worth a read.