Taking Liberties: The Supreme Court's New Hierarchy of Rights and Its Victims

The legitimacy of our unelected Supreme Court comes from the nature and structural limitations on judicial power. Courts do not make policy in the abstract. Rather, Article III requires federal judges to decide only real, live disputes, on the facts before them. Stare decisis then prevents the courts from changing legal rules willy-nilly.

The big, important changes come instead through collective decision-making by our elected representatives. When courts do break from stare decisis, it is normally to expand protections for the politically disempowered. Those protections then make legislatures more representative and act as brakes on abuses of minorities by an empowered majority. And for similar representation-reinforcing reasons, courts do not systematically prefer one fundamental right over others but instead seek to rationalize and respect all those rights, and hence all rights-bearers.

Together, these rules restrain the judicial function, prevent courts from usurping the powers of the people, and engender trust in the legal system to resolve our disputes peacefully. Except, that’s not how things actually work. The Supreme Court now routinely ignores all these limitations—most obviously, though certainly not exclusively, in cases that touch on religion. In doing so, the Court casts doubt on its own legitimacy and undermines the rule of law.

With political violence on the rise, both in intensity and in frequency, that is exactly the oppositive of what we expect and need from our legal institutions.