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THE PEOPLE'S COURT

Our legal guardians

January 08, 2006|Cass R. Sunstein | Cass R. Sunstein teaches at the University of Chicago Law School and is the author of "Radicals in Robes" and "Infotopia," forthcoming this year.

THE QUESTION underpinning all others at Supreme Court nominee Samuel A. Alito Jr.'s confirmation hearings Monday involves the role of the court in our society. Should it be "active" or "passive"? Should it defer to the president or to Congress?

Although such questions can be rephrased in many ways, the answer to them all should be straightforward: The Supreme Court's most important function is to vindicate the law and, in that way, to commit the United States to the rule of law, rather than of individual human beings. That means holding government -- legislative and executive -- accountable. This role matters in ordinary times, but it is crucial when the political pressure on the court is most intense. Consider:

* One of the nation's greatest presidents, Abraham Lincoln, suspended the writ of habeas corpus in the midst of the Civil War. The nation's chief justice, Roger B. Taney, invalidated the suspension on grounds that only Congress could do that.

* During the Depression, another great president, Franklin D. Roosevelt, fired a member of the Federal Trade Commission. The Supreme Court ruled that Roosevelt acted illegally and in violation of Congress' will.

* During the Korean War, President Truman seized the country's steel mills on grounds that the war effort would be jeopardized if the steel industry went on strike. The top court struck down Truman's action, ruling that the president needed Congress' authorization and that even the president must obey the law.

* In 2004, the court rejected President Bush's claim that in the war on terror, enemy combatants may be detained without a hearing. Carefully holding the president to the Constitution's requirements, it said that the founding document "most assuredly envisions a role for all three branches when individual liberties are at stake."

In protecting the rule of law, the Supreme Court's mere existence is every bit as important as its rulings. Government officials at all levels know the court might hold them to account if they discriminate on the basis of race, sex or religion, or violate the nation's environmental laws, or implement policies that infringe on free speech or the right to private property.

It is important to recognize that many of the court's most important decisions involve ordinary law, not the Constitution (except indirectly). During the Cold War, the court ruled that the secretary of State could not deny a passport to a communist because Congress had not granted the secretary the power to deny a passport on political grounds. More recently, it unanimously endorsed a broad reading of the Clean Air Act that required pollution controls that some members of the Bush administration didn't like. In areas involving consumer protection, energy policy, national security, animal welfare, automobile safety, telecommunications and much more, the Supreme Court greatly increases the likelihood that government will obey the law.

In all this, the court performs an indispensable democratic function simply because the law has been enacted by the people's representatives. But when it is working well, the court does much more to promote democracy. Most important, it safeguards freedom of speech and the right to vote, thus protecting what could be called the internal morality of democracy. A well-functioning system of self-government does not simply follow the majority's desires. At a minimum, it also immunizes political dissent and ensures the right of citizens to select their representatives.

To say this is not to say that the court has always performed its role well. In two different ways, it can sometimes badly serve the nation. The first -- and the worse -- is by striking down the decisions of the elected branches of government through judgments that reflect the justices' own views on public policy. The second is to capitulate to political will and allow the elected branches to violate the law.

In 1857, the court ruled, wrongly, that the Constitution entrenched slavery and thus banned freeing slaves in the Louisiana Territory. In the early decades of the 20th century, it held, wrongly, that the Constitution bans minimum-wage laws, maximum-hour laws and other government efforts to assist workers. The question of reproductive choice is much more controversial. But many people believe, not implausibly, that the court also was wrong to protect the right to choose abortion.

Since 1995, the Supreme Court has struck down more than 30 acts of Congress, including provisions of the Violence Against Women Act, the Americans with Disabilities Act and the Age Discrimination in Employment Act. In taking these stands and in striking down affirmative action programs and campaign finance regulation, the court has probably exceeded its proper bounds.

Nor is it difficult to find cases in which the court did not take the Constitution seriously enough. In 1896, it ruled that the Constitution permits racial segregation. In 1944, it allowed Japanese Americans on the West Coast to be placed in internment camps. Many people believe, not implausibly, that the court was wrong to uphold a Georgia law banning same-sex sodomy in 1986 -- and that the court was right to overrule that ruling in 2003.

But more often than not, the court's independent role has served U.S. government exceedingly well.

The more important point is far broader. The rule of law cannot maintain itself on the goodwill of officials, even those who are democratically elected and accountable to the public. The rule of law is an immense but fragile achievement. In our system, the Supreme Court's most crucial role is to protect that achievement.

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