By J. Brent Walker, BJC Executive Director
President Barack Obama’s recent remarks about “unelected judges” thwarting the will of the elected political branches provides an opportunity to think about several fundaments of our democratic form of government and how best to protect religious liberty.
After teaching constitutional law for 10 years at the University of Chicago, the president knows better than to impugn the right of the judiciary to declare acts of their legislature unconstitutional. This has been settled law going all the way back to Marbury v. Madison (1803) in which Supreme Court Chief Justice John Marshall articulated the concept of judicial review and declared the judiciary to be the final arbiter of what the law is. Moreover, in the chapter titled “Our Constitution” in his book The Audacity of Hope, Obama makes clear his mature understanding of the nuances of the Constitution and the Bill of Rights.
The president’s clarification the next day — that he was talking about the Court’s decision in the 2010 Affordable Care Act case, not challenging the doctrine of judicial review across the board — was appropriate and helpful. Although one could argue the propriety of the president commenting on a pending case, one cannot be surprised that he thinks the Court should not strike down his administration’s signature legislative effort which his Justice Department vigorously defended before the Court.
Still, this flap provides a good opportunity to think some more about core issues of our democracy.
First, how in a democracy do we square the will of the majority with the rights of the minority? How do we resolve the tension between a fundamentally majoritarian Constitution with an essentially counter-majoritarian Bill of Rights? Yes, most of our elections and policy decisions are made by majority vote. But the rights listed in the Bill of Rights, as former Supreme Court Justice Sandra Day O’Connor reminded us, have been withdrawn from the “vicissitudes of political controversy” and “depend on the outcome of no elections.” Pure majoritarianism can become as tyrannical as rank totalitarianism. And it is the province of the unelected judiciary to interpret the Constitution and its Bill of Rights and to protect the rights of the minority, even against the will of an overwhelming majority.
This counter-majoritarian understanding of the protections for religious freedom in particular should motivate the Court to robustly enforce both religion clauses in the First Amendment. If either clause is collapsed into the other, or if both are watered down into a muddled majoritarianism, religious liberty suffers.
Second, attempts on the part of courts to apply the Bill of Rights and to enforce counter-majoritarian values often engender cries of so-called “judicial activism.” For the past 50 to 60 years, opposition to judicial activism has been the calling card of the conservative side of the political spectrum. They point to a variety of Supreme Court decisions, including ones striking state-sponsored school prayer, upholding abortion rights, and protecting unpopular forms of speech, such as flag burning.
But, more recently, the critique of judicial activism has sometimes come from the more liberal side of the spectrum. Republican presidents who campaigned against judicial activism appointed 12 justices to the Supreme Court between 1969 and 2008. But, as liberals point out, the Rehnquist and Roberts Courts have struck down 46 federal laws over the past two decades compared with fewer than 130 during the first two centuries of the Supreme Court’s existence. This, of course, includes the Court striking down parts of the landmark Religious Freedom Restoration Act of 1993, an all-important law needed to buttress the free exercise of religion.
The lesson we should all learn is to be careful, those on the left and on the right, about charges of judicial activism. No, the Court should not strike down laws of Congress and other legislatures lightly and without much study and discretion. However, when elected branches pass or enforce laws that transgress constitutional rights, including protections for minority rights, the courts must act to take up their mandate to correct the error.
No one complains about judicial activism when they agree with what the Court has done. As someone once quipped, “If the Court makes a decision that you like, it’s applauded as judicial statesmanship. If you don’t like it, it is called judicial activism.”
The counter-majoritarian understanding of the Bill of Rights and questions of judicial activism go to the very heart of our quest to ensure religious liberty for all through the protections afforded in the religion clauses of the First Amendment. If the Court fails rigorously to enforce these clauses in a counter-majoritarian way or falls into the stupor of judicial inactivity, the First Amendment will not do its intended work of ensuring religious freedom for all.
