Jay Cost of National Review Online ponders the consequences of U.S. Supreme Court policymaking.
… [T]he role of the Supreme Court has really unhinged our politics. Not only are we fighting over fairly abstruse matters of senatorial procedure, but we are calling each other nasty names over it!
This is certainly not how the Framers anticipated the Court’s role in American politics. In Federalist No. 78, Alexander Hamilton assured skeptics of the Constitution that the Court was nothing to fret over. …
… Hamilton’s prediction turned out to be overly optimistic. In a nation such as ours, which reveres the rule of law and expects its elected officials to do likewise, the Court does not need to wield the purse or the sword for its judgments to have force. People obey the Court because the Court is part of a constitutional order that has widespread public support and esteem. And because of this, the Court has carved out for itself a position above and beyond the other branches, whereby its judgments can be overruled only by a later Supreme Court decision or by a constitutional amendment. …
… It is, and has long been, a policymaking branch. Even if it was scrupulous in hewing devoutly to matters of law, it would inevitably find itself influencing government policy. Moreover, as we all know, the Court often does not try to restrain itself, instead governing unapologetically as a kind of Federalist super-legislature — crafting public policy on the federal, state, and even local level, independent of direct public oversight.
One of the problems with such rule by a political elite immune from public influence is that the American people are not well suited to it. We the people expect to be in charge.
