Republican midterm Senate gains now augur the confirmation of more conservative federal judges, including the possibility of an additional Supreme Court justice. Critics contend an increasingly conservative Court will accelerate the divisiveness plaguing today’s politics. In fact, the opposite may be true. If the conservative justices adhere to three core principles and avoid the temptation to engage in conservative activism, then the Court could help forge democratic citizens better able to cooperate and compromise.
News flash: Our public discourse is toxic right now. Too many of us neither understand, nor especially like, people with different views. Problems harden almost immediately into tribal disputes. Disagreements seem to automatically escalate to outrages. We have lost our ability to productively navigate our political differences. Which is to say: to govern ourselves well.
There are a panoply of reasons for how we got here. Globalization, immigration, and automation can produce a widespread sense of insecurity in society. Social media amplifies polarizing voices and helps people circumscribe their information intake. People increasingly self-sort, moving to areas where neighbors are like-minded and marrying those with shared backgrounds and beliefs. These factors, we are told, isolate us and incite incivility.
But there is another explanation: Trends in governing have eroded the beliefs, norms and processes by which we learn to be accommodating citizens in a pluralistic, deliberative democracy. By manufacturing rights that limit democratic decision-making, centralizing power in Washington far from citizens’ lives, and empowering unelected bureaucrats in federal regulatory agencies, we’ve obstructed Americans’ practice of self-government. From this perspective, it is no surprise that we are losing the disposition and skills for collegial, conciliatory collective action.
Leaving the resolution of contentious issues to local citizens has many benefits. Local communities can, of course, devise solutions tailored to their own needs. But these solutions will also be based on the history and culture of the community and the knowledge of its residents.
This governing approach enables citizens to both respect their past and control their future. Because they understand how the status quo developed and will have to live with the consequences of change, local citizens are apt to propose prudent, incremental reforms aimed at modest solutions, rather than grand political statements. And local citizens generally avoid dramatic change that could upend lives and disregard the perspectives of those on the losing side. Because the losers in any particular conflict aren’t nameless, faceless people in some other region of the country. They’re neighbors.
This preference for gradual, workable answers has a moderating influence on politics; so, too, can the process of small-scale democratic decision-making. If you know your opponents, their families and their friends, you’re less likely to insult or dismiss them. You’ll need to engage with them repeatedly, meaning your bad behavior today could jeopardize future collaboration. All of which fosters cordiality and compromise: Mutually acceptable decisions require treating one another well and learning to balance competing interests.
By contrast, when our governing system allows judges, Washington officials, and regulatory “specialists” to do our deliberating and deciding for us, our citizen skills deteriorate. When they substitute their knowledge for ours, we grow angry because they have robbed us of our agency. When they impose their preferences on our communities without knowing us and without being accountable to us, we resort to caricaturing and disparaging them. We worry less about speaking intemperately because we cannot poison a local decision-making process that doesn’t exist. When you have no actual power, rhetoric is the only tool at hand.
It may be gratifying to have a distant power force everyone else to live by your policy preferences. But if we care about developing and nurturing the disposition and skills for democratic life, we have to allow our fellow citizens to govern themselves. You don’t become better at math when someone else does your math homework for you. You don’t become a better athlete if you’re not allowed to practice. We won’t become better democratic citizens until we are no longer prevented from practicing self-government.
Now might today’s conservative majority on the Court help solve this problem? By unwinding the activism of past Court majorities, returning power to legislatures, and devolving authority to state and local governments.
To do so, the Court must first end the practice of creating rights not contemplated by the Constitution. Judicially invented rights, such as in Roe v. Wade, freeze the democratic process in its tracks by removing issues from the political realm. Citizens thus lose the ability to come together, debate, and compromise. Though core liberties such as free speech and freedom from racial discrimination must be protected, the vast majority of our policy debates don’t have obvious answers; they should remain a matter of democratic deliberation.
Second, the Court should halt the centralization of power in Washington. Our federal government was designed to have limited authority, but today there are few policy domains Uncle Sam can’t claim for himself. We must stop shifting power thousands of miles away and into the hands of people most citizens will never meet. Decisions made so distantly are a poor fit for many communities and render people voiceless. The explicit enumeration of limited federal powers and the 10th Amendment’s reservation of all other powers to the states and the people are not incidental constitutional features; they are indispensable to self-government and the development of democratic citizens.
Third, the Court should curb the growth of the federal administrative state. Through the lassitude of Congress and a series of Court decisions, executive-branch agencies and their unelected leaders have amassed more and more authority. Today, many decisions come not from laws properly enacted by elected representatives but from rules and letters issued by regulatory bodies composed of appointed and civil-service officials. Handing so much power to insulated administrative “experts” diminishes the role of deliberative democracy by shielding many of our country’s thorniest issues from citizens’ influence.
To varying degrees, the five conservative justices appear supportive of these three philosophic imperatives. But they will face pressure to preserve the current course. They will be told to defer to the rights-creating precedents of previous Courts, to Uncle Sam’s demands, and to the technical experts leading administrative agencies.
But we should hope that the conservative justices resist those calls, just as we hope they resist the temptation to use judicial activism to read conservative policy preferences into the Constitution, as the Court did a century ago in its regrettable Lochner decision. Instead, the Court should defer to Americans’ right and responsibility to rule themselves democratically. Conservative judicial activism is still judicial activism.
Now more than ever, we need a citizenry that faces down, grapples with, and finds compromises for the toughest challenges of the day. That only happens through the practice of self-government. The new conservative majority on the high court could rejuvenate that practice, if they choose.
