A Stitch in Haste

After spending so many column-inches mocking Paul Krugman, I feel a need to bring balance to the Force by mocking John Yoo:

The U.S. Supreme Court’s 2007-08 term had something for everybody. Liberals came away with a victory on the cases testing the rights of Guantanamo Bay detainees. Conservatives prevailed with the court’s first defense of the individual right to own and bear firearms. Liberals applauded the prohibition on the death penalty for the rape of minors; conservatives liked the overturning of a campaign-finance law.

But the biggest winner by far was the court itself. Slowly but surely, the justices have expanded their power to make many of our society’s fundamental political and moral decisions. Only the court now decides whether schools or the government can resort to race-based preferences when it admits students or doles out contracts. States and the federal government must live by the court’s dictates on the regulation of abortion. Whether religious groups can help educate inner-city children or provide welfare services is up to the justices. Use of the death penalty, indeed whether each individual execution will go forward, is ultimately controlled by our unelected judges.
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This is not to deny that there are moments that we need the courts to defend individual liberties against unconstitutional actions by the government. But those moments may not be as ever-present as the federal courts today may think, and the price is not just that the courts may get it wrong, but that the expansion of their powers will sap our energies of republican self-government.

This is, of course, utter nonsense.

Let’s begin at the beginning. The Supreme Court handed down 67 opinions in its last term. How many laws did Congress pass during that time? How many executive orders did President Bush issue? Which of the three branches is, therefore, the only one that reasonable people cannot possibly accuse of “doing too much”?

More importantly, how does the Supreme Court — or any court — ever do anything? Does Chief Justice Roberts ever wake up one morning and say to the associate justices, “I feel like handing down an abortion decision today…“? Did the judges of the California Supreme Court suddenly decide to flip a coin and say, “heads gay marriage, tails non-compete clauses…“?

Unlike activist legislators (who can and do make laws for no other reason than to keep themselves busy), a court can do nothing, absolutely nothing, until a case is brought before it.

The only reason the Supreme Court handed down District v. Heller was because our activist legislators acted first. The only reason the Supreme Court handed down Boumediene v. Bush was because our activist president acted first. The so-called “political branches” — by which we mean the majoritarian branches that ceaselessly act for the sake of acting, the branches that embrace and feed off the endless bickering of clashing factions (which Yoo naively celebrates as the “energies of republican self-government”) are always the ones that act; the courts can only react. Judges can therefore never “expand their power” in any meaningful sense of the term.

Indeed, what has the trend of the judiciary been over the past few decades? One simple word: deference. But sometimes the political branches are so undeniably out of control, so teeming with the “energies of republican self-government” that the courts are left with no choice but to react. Not “act” — react.

Judges understand, in a way that people like Yoo never can, that “energies” can be used to destroy as well as create, to harm as well as to help. That a “vessel with excessive energies” is just another way of saying “bomb.”

To fret about the power of judges relative to the political branches is akin to suggesting that black has an advantage in chess. It’s facially absurd. The reactor never has more power than the actor.

This is not to say that judges are never wrong. This is not to say that judges are never political. This is not to say that judges never succumb to factionalism. But none of that is Yoo’s point anyway. Yoo’s point is merely: Judges “do too much.”

To which the only possible response is: Compared to what?