The Real Affront to Democratic Theory

I recently came across the following quote from Posner’s How Judges Think:

If I am right that [the Supreme Court] is a political court, the absence of term limits is an affront to democratic theory; conferring life tenure on politicians is profoundly undemocratic.

From Posner’s perspective, the absence of term limits can be regarded as an affront to democratic theory.  But turning a separate branch of government with a completely different purpose in our tripartite system into a second legislative branch is certainly an even bigger affront to American constitutionalism.  Imposing term limits on the Justices does nothing to address this central – and much more significant – concern.  The biggest affront to our structure of government is settling on a false application of America’s constitutional ideals.  And this, in fact, becomes the real affront to democratic theory: judges that reach beyond the constitutional text’s original understanding by articulating new rights under the guise of interpreting the text strip the population of its basic right to use the democratic process to determine for themselves the issues that the Constitution does not address.  Such a jurisprudence essentially robs Americans of their democratic voice on the most divisive issues.

In so doing, the Court seals its fate as a political institution.  So long as the America that people want depends in large part upon the composition of the Supreme Court, nomination of potential justices will be politically charged rather than merit based.  Justices will be chosen based on whether they interpret the Constitution strictly or expansively.  They will be chosen based on whether or not they plan to defend the constitutional protection of abortion, articulate a constitutional right to same-sex marriage, or interpret other provisions as protecting a newly defined fundamental right.  In so doing, nine justices unaccountable to the electorate will be blanketing the entire country with their own subjective beliefs as to what rights ought to be in the Constitution.

The most crucial point here is that this should trouble people of all political stripes.  I am often astounded by how many Americans seem completely indifferent as to how rights are protected.  They don’t care if a state law is passed, a federal law is passed, a judge reads a new right into a state or federal constitution, or if the Constitution is simply amended so long as they obtain their desired result.  But this is one of the most flagrant examples of “ends justifies the means” analysis present in our society.  We should be troubled by ultra vires acts by the government regardless of our beliefs.  I strongly believe in a woman’s right to choose to have an abortion and in everybody’s right to marry whomever they wish.  But I also believe in every American’s right to have their say on these divisive issues through the basic democratic process that this country was founded upon.  I cannot justify the uniform application of my personal ideals to the whole country solely upon my strong desire for such a result.  Absent a clear mandate in the Constitution, I, like everyone else, must seek desired change through the democratic process.

Consider the alternative.  If Roe v. Wade was overturned, the decision of whether or not to prohibit abortion would be left to the states. People all across the country would be able to voice their opinions on the issue through their individual votes on local leaders.  Alternatively, Congress could conceivably use their power under the Commerce Clause to protect a basic right to abortion through statute.  Either of these results would remove this lightning rod of an issue to its more appropriate home – the political sphere.  Such a turn of events would result in the Court regaining a large degree of its lost integrity.