George F. Will [“ ‘Disdain’ and democracy,” op-ed, Dec. 30] appeared to understand neither Pamela S. Karlan’s thesis in her Harvard Law Review article (which was spot on) nor the proper role of the Supreme Court in our constitutional system.
That role, in short, is to respect and uphold the reasonable judgments of the democratically elected branches of government except when there is a compelling reason to distrust those judgments. As the Supreme Court has recognized for the past 75 years, such distrust is warranted in two situations: when the majority enacts laws that disadvantage a historically oppressed group and when the majority enacts laws that perpetuate its own authority. It was this understanding of its constitutional responsibility that quite properly drove the decision-making of the Warren Court.
From this perspective, the conservative justices of the Roberts Court have a rather perverse view of their role. On the one hand, they consistently vote to uphold laws that disadvantage women, African Americans, political dissenters and people accused of crime. On the other, they consistently vote to invalidate laws that regulate guns, limit campaign expenditures by corporations and wealthy individuals and guarantee health care to all Americans.
This voting pattern has nothing to do with any principled understanding of either constitutional law or the proper role of the court in our constitutional system. It is based neither on originalism nor judicial restraint. It is not even “calling balls and strikes.” It is, rather, reflective of the justices’ own deeply value-laden approach to what they regard as the “good society.” As Ms. Karlan rightly concluded, such an approach is “disdainful” of American democracy.
Geoffrey R. Stone, Chicago
The writer is Edward H. Levi Distinguished Service Professor at the University of Chicago Law School.