Thomas Donnelly is a Climenko Fellow and lecturer on law at Harvard Law School. An extended version of this argument will appear in the March issue of the Wisconsin Law Review.
In a recent Republican debate and in remarks to journalists, former House speaker Newt Gingrich attacked federal courts as “grotesquely dictatorial” and defended proposals to curb them, including impeaching unruly judges, having U.S. marshals haul such judges before Congress and abolishing certain courts altogether.
Although Gingrich’s attacks on our “dictatorial” judiciary are overstated, they hark back to a time when progressives were committed to curbing court power.
A century ago, Theodore Roosevelt spoke to a convention assembled to revise Ohio’s constitution. Spurred by recent court decisions striking down various labor laws, Roosevelt called for reforms that would ensure that the American people had the final say over important constitutional questions. In so doing, Roosevelt attacked judicial supremacy, believing it “both absurd and degrading to make a fetish of a judge or of anyone else.”
At the center of Roosevelt’s reform agenda was a simple, albeit controversial, proposal: the recall of judicial decisions. Roosevelt summarized this by saying that, when judges decide a constitutional question, “the people should have the right to recall that decision if they think it wrong.” Interestingly, Roosevelt limited this remedy to “decision[s] by a close majority” of judges — in other words, cases where judges had “decided every which way” and where it was “foolish” to talk of any legal consensus on the issue. Therefore, Roosevelt sought to preserve a role for judicial independence in those cases where a legal consensus existed, even as he subjected closely divided constitutional decisions to a popular check.
Roosevelt offered his proposal in a time of perceived crisis — when, in the face of a conservative (and active) judiciary, many feared that people might lose their power to address the great social and economic issues of the day. Gingrich’s bombast aside, we face no such crisis today. Although the Supreme Court’s rhetoric is steeped in judicial supremacy, few scholars doubt that its decisions usually reflect the constitutional views of the American people (that is, when such views exist). Nevertheless, Roosevelt’s prescription ought to outlive its historical context.
Each term, the Supreme Court decides a handful of controversial cases by a bare majority. These decisions are all but impossible to reverse in the short term — even as they bitterly divide the justices. Furthermore, the court imperfectly reflects the constitutional views of governing coalitions over time, as the justices often maintain their positions for as long as possible to ensure that a sympathetic president can appoint their successors. Roosevelt’s proposed remedy — what might be called a “People’s Veto” — could be tailored to address these widely recognized problems.
For instance, such a veto could be reserved for 5 to 4 decisions of the Supreme Court on constitutional issues — in other words, decisions in which the majority is often attempting to push constitutional doctrine in a new direction. A People’s Veto would permit the public to weigh in, perhaps following a national petition drive or congressional authorization.
What difference might a People’s Veto make in practice? Take the most high-profile issue on the court’s current docket, the constitutionality of the Affordable Care Act’s individual mandate. Today, media reports on the “Obamacare” litigation presume that the Supreme Court will “settle” the constitutional question. With a People’s Veto, these stories would change.
Rather than anticipating a 5 to 4 decision that would “settle” the constitutional controversy, news reports would focus on whether such a decision would trigger the People’s Veto — and, if so, how the American people would likely “settle” the controversy. Over time, such thinking could change Americans’ constitutional psychology. Voters might no longer presume that the Supreme Court would get the “final say” on high-salience constitutional issues. Instead, they might ask themselves how they would decide the issue — and why.
Put another way, one does not have to hold Gingrich’s anti-court views to accept — as Roosevelt did — that the American people should play a more direct, ongoing, deliberative role in constitutional decision-making.