The Supreme Court Between Power and Authority

03-10-2024

Roger Berkowitz

There has been a fair bit of unanimity in the Supreme Court recently. Last week, the Court agreed without dissent to decide whether a former president of the United States is immune from criminal prosecution "for conduct alleged to involve official acts during his tenure in office." Because the oral arguments won't happen until April, and because the judge overseeing the trial against former President Trump for "conspiracy to defraud the United States" has said the trial won't start before 88 days after the Supreme Court decides the immunity claim, the Court's willingness to take Trump's appeal ensures that the case won't begin until September, right during the height of the 2024 presidential election.  Then this week in Trump v. Anderson, the Supreme Court offered a unanimous decision that Colorado and other states couldn't remove former President Donald Trump from the ballot under Section 3 of the 14th Amendment. 
 
But even amidst a unanimous judgment, the justices couldn't present themselves as a body above politics. The three "liberal justices" complained that the five conservative justices went too far in extending their ruling to hold that congressional legislation was needed to give Section 3 power in any instance of federal election.  Justice Amy Coney Barrett agreed with the other female justices that the five men on the Court overstepped the legal nature of their task. Barrett, in a short concurrence, chides all eight of her fellow judges for letting politics trump legality. And she counsels journalists and commentators to emphasize the court's unity on the judgment, not its partisanship. She writes:

The majority’s choice of a different path leaves the remaining Justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home. 

Barrett's concern with the Court's legal authority is not new. In 2021 Barrett told an audience in Kentucky that “my goal today is to convince you that this court is not comprised of a bunch of partisan hacks.”
 
Barrett’s message is not getting through. Late night host Jon Stewart calls the Court “The Fox News of justice.” And Stephen Colbert has sought to declare the Court unconstitutional. Even mainstream law professors have decided to focus on the Court’s partisanship and illegitimacy. Larry Kramer, a dean at Stanford law school, retired from teaching constitutional law after the Supreme Court's "divisive decision in District of Columbia v. Heller, which struck down decades of precedent to declare for the first time that the Second Amendment protects an individual right to bear arms. Many observers felt that Heller's majority opinion, by Justice Antonin Scalia, intentionally warped history to reach a preordained result." Kramer told Will Baude, his former student and now a Constitutional law professor at University of Chicago, First-year law students, he felt, "should be taught by someone who still believed in what the court did.” There is an increasing sense ranging from comedians to law professors that the Supreme Court has lost its authority, that it has ceased to be a body that governs according to the law, and that it has come to be an unelected branch of government that is dedicated to conservative power. Thus, Ryan D. Doerfler and Samuel Moyn argue that progressives "must begin with how to diminish the institution's power in favor of popular majorities.”  For Doerfler and Moyn, we should not seek to promote respect for the court, but rather the opposite. "Saving the Supreme Court is not a desirable goal; getting it out of the way of progressive reform is."

This now common argument overlooks that the Supreme Court has been political since the beginning. When Justice Marshall decided Marbury, there were winners and losers. When Justice Taney decided Dred Scott, there were winners and losers. Same with the Lochner Court and the Warren Court.  The Court is not newly imperial, or newly lawless, or newly political. As Will Baude writes: 

What has changed is that many more folks inside the Ivory Tower have noticed, and no longer see their values and ways of thinking represented as often by the Court.... Once we realize that somebody has always been holding the short end of the Supreme Court, somebody has always been losing, somebody has always been having important decisions ripped away from them on contestable legal grounds, the task of the professor has not fundamentally changed.

In spite of the fact that the Court has always been political, it has also always had an authority that distinguishes it from politics. For Hannah Arendt, the authority of the American Supreme Court was an essential aspect of the country’s foundation of freedom. Authority, Arendt argues, is difficult if not impossible to maintain in a secular world. And yet, without authority, all laws appear simply as means of power and politics. There is no assumed obligation to obey the laws, to respect the institutions, and to allow for the peaceful and lawful transitions of power. Authority is what elevates the laws to legitimacy and thus allows a free people to struggle politically to create the world they want within the limits of the law. 

In the United States, the authority of the law comes about when the U.S. Constitution came to be worshiped. Arendt argues that the American Revolution was the only revolution that successfully discovered an authority, not from God, not from science, but in the act of foundation. 

Where the act of founding leads to a veneration of the founding, this act authorizes the new union, gives it the patina of perpetuity and justice. It immortalizes the union as deserving of being revered and celebrated. That act of foundation then becomes the non-absolute absolute, that to which all current controversies refer back. And as the interpreter of the Constitution, the Supreme Court was to tie the present moment back to the principles of the founding of the country. The judges are to make arguments not about power, but about how their decisions are governed by fundamental principles established at the beginning of the country. Of course these judicial decisions have political outcomes. And no doubt the justices have biases. But by binding themselves to arguments about foundational principles, they re-bind the country to constitutional authority.

Arendt’s extraordinary argument is that the distinction of the American Constitution is that it transfers the Roman foundation of freedom from the Senate to the Supreme Court. Because the Supreme Court is, in Woodrow Wilson’s phrase, ‘“a kind of Constitutional Assembly in continuous session,”’ the Court bases its authority on a reverence for—and a claim to be reenacting—the founding experience of the nation. It is this intimate weaving of ‘foundation, augmentation, and conservation,’ into a single cloak of constitutional authority that Arendt understands to be ‘the most important single notion which the men of the Revolution adopted.’ Like Roman Senators, the Court justices must remain at all times as founders who would regularly experience the revolutionary thrill of foundation and beginning. The Court was, Arendt saw, a constitutionally authorized space of revolutionary freedom.
 
How the Supreme Court and its justices tie themselves back to the founding moment as reincarnations of the founding fathers partakes, of course, of the mysterious. It involves not only robes and wigs, pomp and circumstance, but also a concerted effort to separate law from politics. It is a claim for authority that rests on a combination of the claim of expertise, to being apolitical, to standing above the fray, and above all to subordinating themselves to the founding principles of the nation. 

All claims to authority are questionable in our secular, skeptical, and cynical age. This is even more so the case since the advent of the internet. As Martin Gurri argues, "The greater the diffusion of information to the public, the more illegitimate any political status quo will appear." All authority depends on a story of a person or an institution being above politics. There is in authority the claim to elevation beyond one’s personal interest to the common interest. And authority also is founded upon claims of expertise and specialized knowledge that lends certainty and credibility to judgment. In the age of unlimited information, however, all claims to certainty and all stories of impartiality come to be suspect. Gurri writes:  "Uncertainty is an acid, corrosive to authority. Once the monopoly on information is lost, so too is our trust. Every presidential statement, every CIA assessment, every investigative report by a great newspaper, suddenly acquired an arbitrary aspect,... When proof for and against approaches infinity, a cloud of suspicion about cherry-picking data will hang over every authoritative judgment."

We are able today to place every Supreme Court Justice under the microscope and check their judgments for consistency with an ease never before imaginable. We have access to their personal lives, the politics of their spouses, their corruptions. The result is that it is ever more difficult for the Court to maintain its authority. This is especially so when the Court shifts so radically and swiftly as a result of blatant political maneuvers to influence its personnel. It is easy, in this moment, to simply believe that the ideas of the authority of the Supreme Court is as unhelpful as it is impossible. 

Arendt, however, offers a caution for those who would sacrifice the authority of the Court and the Constitution for political gain. She writes: "And one may be tempted even to predict that the authority of the republic will be safe and intact as long as the act itself, the beginning as such, is remembered whenever constitutional questions in the narrower sense of the word come into play." If we allow the Court’s authority to ebb and disappear, it is not at all certain that any authority can replace it. Without authority, she worries, there is no possibility of a stable political life marked by freedom. 

The question of how to balance power and authority was the centerpiece of the Arendt Center’s conference “Between Power and Authority: Arendt on the Constitution and the Courts” that took place this past week. You can watch Peg Birmingham’s 2024 De Gruyter Lecture “The Problem of Constitutional Authority in a Secular Age,” here.