I was invited to participate last Fall on a Wisconsin Law Review symposium panel on "Is the Court out of Control?," and I wrote up a short (12-page) article for that. I thought I'd post it in several pieces; I hope some of you find it interesting, and I also still have time to make any corrections, if need be. Here's the first part.
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This Symposium panel asks, is the Court out of control? I suppose the question is: Control by whom?
[A.] Control by the Political Branches
The Court is certainly out of control of the political branches, as to certain facets of its decision-making. But that has been a feature of the Court for a long time. Eric Segall makes excellent arguments—echoing ones that had been famously made by James Bradley Thayer and others[1]—that there ought to be more control of the Court by the political process. I remember Lino Graglia saying, thirty years ago and in his usual colorful way: "People complain about tyranny of the majority; but the alternative is tyranny of the minority!," meaning tyranny of five Justices on the Supreme Court (and perhaps of the socio-ideological class to which they belong).[2] Why should they make the decisions for the rest of us?
These are all eminently plausible arguments; but, rightly or wrongly, our national legal custom has indeed been for the Court to be largely outside majoritarian political control. To be sure, the Court has at times cut back on its own power, for instance when it overruled earlier economic substantive due process and Commerce Clause cases in the 1930s and 1940s. But then judicial supremacy roared right back in other areas, such as free speech, equal protection, criminal procedure, reproductive rights, and more.
What's more, at least as to Dobbs v. Jackson Women's Health Organization[3]—likely the decision that academics are most focusing on in the past year—the Court is returning control to the political branches.[4] Now as a policy matter, I support abortion rights, and I'm glad that, for instance, even in Kansas the voters have come out in support of abortion rights.[5] And of course one can argue that abortion rights should remain the federal constitutional rule, whether out of constitutional principle or for stare decisis reasons. But in any case, that's not the Court arrogating extra power to itself, except for the power to give the power back to the political process.
New York State Rifle & Pistol Association v. Bruen,[6] to be sure, does constrain the legislature's power to ban public carrying of guns.[7] Even there, though, note that about forty-one to forty-four states (depending on how you count them) have already recognized a statutory right to carry concealed guns in public places.[8] And though people debate whether, on balance, such "shall-issue" regimes increase violent crime slightly or decrease it slightly, it's pretty clear that the skies have not fallen.
One can of course argue that the Court should be controlled by some other entity as to the restraint that it's placing on gun policy throughout the country. But my point here is simply that it's perfectly normal within U.S. history for the Court to exercise such power, much as it has exercised it regarding broad readings of other provisions of the Bill of Rights.
Of course, a second possible argument is that the Court has given up some traditional self-control, for instance by not feeling controlled by its own precedents. But again, anybody who studies the late 1930s Court or the Warren Court is surely familiar with the many important precedents that those Courts reversed—many quite rightly, I think.[9]
And it's not clear that the Court should always be constrained by precedents. Indeed, given the difficulty of correcting the Court's past errors through the constitutional amendment process, perhaps the Justices ought to be more willing to decide whether some past precedents are indeed erroneous.[10] The Court may need the power to reverse its own constitutional precedents because, largely, nobody else can.
Now some have argued, especially regarding Dobbs, that the Court had never before reversed a precedent that protected individual rights. This argument may have to do with a progressive constitutionalist view in favor of more individual rights (though of course the criticism of Bruen illustrates that progressives are, unsurprisingly, skeptical of some constitutional rights claims).
But of course, the Court has indeed reversed important precedents protecting what it had earlier seen as constitutional rights. In fact, this was so as to the same constitutional provision: the Due Process Clause as applied to unenumerated rights. In the early 1900s, the theory was that people have various liberty of contract rights to dispose of their labor without undue regulation. In the 1930s, the Court reversed that.[11]
Now, of course, one might argue that those were bad cases, meaning the Court was right to reverse them, and that Roe was a good case that the Court was wrong to reverse. But that's just an objection that the Court is out of the control of the critics' own personal moral judgment.
[C.] Control by Judicial Minimalism
Another form of self-control might have to do with judges deliberately avoiding major culture war controversies. They might, for instance, choose not to decide some questions that are too controversial, or they might choose to take small steps rather than bigger ones.
But the Court often decides which cases to hear based on splits among the federal circuit courts or state supreme courts. Categorical minimalism would leave these disagreements unresolved, with one understanding of federal rights prevailing in one region of the country while an opposite understanding controls another region.
Bruen offers a classic example: There some circuit courts held there was an individual right to keep and bear arms in public places, and others held there wasn't.[12] The Court could indeed have just sat that out; but I doubt it would have been right for, say, the Illinois and D.C. legislatures to remain constrained by one reading of the Second Amendment, and the California and New Jersey legislatures to be freed by a different reading. We should indeed be concerned about public confidence in the Court, and in the court system more broadly. But I doubt that such an enduring inconsistency in how federal rights are understood by federal courts would yield more public confidence.
As to incrementalism, some Justices may prefer incremental movement, but see their adversaries, either on the current or past Courts, making radical changes. Say what you would about Roe v. Wade,[13] but it was a radical decision. It's not clear that many Justices would or should feel obligated to be incrementalist when the other side is not. And of course, this is equally true as to both sides of the aisle. If some Justices think that Bruen or District of Columbia v. Heller[14] were radically wrong, I doubt those Justices would or should be particularly incrementalist in dealing with those cases if they got a majority for reversing them (though, of course, who knows for sure?).
[D.] Control by Text, Original Meaning, and Tradition
Another possible argument is that the Court refuses to be controlled by the constitutional text, original meaning, and tradition—the classic criticism that had been levied by conservatives against past Courts.
I think Bruen is consistent with the constitutional text, with our best inference as to original meaning, and with the American tradition of allowing some form of carrying (depending on the time and place, open or concealed). But of course, human nature being what it is, it's unsurprising that, when people look at ambiguous texts and traditions—or texts and traditions that others might see as ambiguous—they see things they like. Indeed, this might be a problem with the traditional conservative argument that attention to text, original meaning, and tradition will constrain judges: perhaps, realistically, it doesn't actually constrain them.
But it's not like living constitutionalism offers much more constraint, right? If all of the conservatives on the Court said, we see the light, we are living constitutionalists now, I very much doubt that people on the Left would applaud the results. After all, the conservatives would then likely say—again, human nature being what it is—that the Constitution has evolved to the point of recognizing the importance of armed self-defense,[15] the importance of leaving difficult questions like abortion to the political process, and who knows what other things that conservatives might like and progressives might not.
[1]. See, e.g., James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv. L. Rev. 129 (1893); Learned Hand, The Bill of Rights (1958); see also Symposium, One Hundred Years of Judicial Review: The Thayer Centennial Symposium, 88 Nw. U. L. Rev. 1 (1993) (documenting the importance of Thayer's work in the legal profession).
[2]. See, e.g., Lino A. Graglia, It's Not Constitutionalism, It's Judicial Activism, 19 Harv. J.L. & Pub. Pol'y 293 (1996).
[5]. Eugene Volokh, Kansas Voters Reject Repeal of State Constitutional Abortion Rights, by >58%-42% Margin, Reason: The Volokh Conspiracy (Aug. 2, 2022, 11:43 PM), https://reason.com/volokh/2022/08/02/kansas-voters-reject-repeal-of-state-constitutional-abortion-rights-by-60-40-margin [https://perma.cc/X3PG-DYAV].
[8]. See id. at 2123 & n.1 (noting that forty-three states are "shall-issue" states, in which pretty much all law-abiding adults can get concealed carry licenses, and that one state, Vermont, does not require licenses and does not even have a licensing system). As the Court notes, "[t]hree States—Connecticut, Delaware, and Rhode Island—have discretionary criteria but appear to operate like 'shall issue' jurisdictions," id., so out of caution I give the range as forty-one to forty-four. See id.
[9]. See Table of Supreme Court Decisions Overruled by Subsequent Decisions, Const. Annotated, https://constitution.congress.gov/resources/decisions-overruled/. The data on this page can be filtered by year, so filtering for 1961 to 1969 shows you all the precedents overruled during the second half of the Warren Court years.
[10]. See, e.g., Glidden Co. v. Zdanok, 370 U.S. 530, 543 (1962) (plurality opinion) (endorsing "this Court's considered practice not to apply stare decisis as rigidly in constitutional as in nonconstitutional cases").
[11]. See W. Coast Hotel Co. v. Parrish, 300 U.S. 379, 391–93, 400 (1937).
[12]. Gould v. Morgan, 907 F.3d 659, 676–77 (1st Cir. 2018), Kachalsky v. County of Westchester, 701 F.3d 81, 101 (2d Cir. 2012), Drake v. Filko, 724 F.3d 426, 440 (3d Cir. 2013), United States v. Masciandaro, 638 F.3d 458, 460, 473–74 (4th Cir. 2011), and Young v. Hawaii, 992 F.3d 765, 773 (9th Cir. 2021), had upheld broad restrictions on carrying in public. Moore v. Madigan, 702 F.3d 933, 942 (7th Cir. 2012), and Wrenn v. District of Columbia, 864 F.3d 650, 667–68 (D.C. Cir. 2017), had struck them down.
[13]. 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022).
[15]. Cf. David Kopel, The Right to Arms in the Living Constitution, 100 Cardozo L. Rev. De Novo 99, 136–38 (2010) (suggesting that a living-constitution approach to the Second Amendment should indeed lead to broad protection for gun rights); Eugene Volokh, Who's Right on Second?, Nat'l Rev. (Dec. 6, 2002, 5:25 PM), https://web.archive.org/web/20021219232455/https://www.nationalreview.com/comment/comment-volohk120602.asp (same).
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