In Federalist No. 78, Alexander Hamilton famously called the federal judiciary “the least dangerous” and the “weakest” branch of government. Hamilton’s words were intended to assuage the fears of would-be voters that having a body of unelected, life-tenured men sitting in judgment of the proclamations of the people would destroy the American republic.
In his new book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, constitutional scholar Ian Millhiser attempts to persuade us that Alexander Hamilton was wrong, or at best shortsighted. As Millhiser writes in his introduction, “Few institutions have inflicted greater suffering on more Americans than the Supreme Court of the United States.” To support this anti-Hamiltonian position, he presents evidence from an impressive number of Supreme Court cases from the late nineteenth century to the 2014 term—involving everything from slavery and segregation to antitrust law and child labor to women’s and workers’ rights to campaign finance and voting rights—and tries to show how in each of these cases the Supreme Court was either complicit in injustice or actively thwarted efforts to promote justice.
In telling these stories, Injustices does a good job of bringing this universe of cases and litigants to life—of showing the real-world impact of decisions rendered from the so-called Marble Temple. However, as an indictment of the Supreme Court as “one of the most powerful and most malign institutions in American history,” Injustices doesn’t quite clinch the case. In failing to engage with a vast literature on the influence and power of the Court, the book magnifies the role of the institution throughout history, without tempering the portrait with a consideration of the constraints on the Supreme Court. The result is a provocative read—but not necessarily a persuasive one.
Because of the sheer number and variety of cases Millhiser recounts in the book, Injustices could serve as a companion reader for undergraduates in a constitutional law course—something like Michael Dorf’s Constitutional Law Stories, but with a stronger point of view. Millhiser, a senior fellow at the Center for American Progress, aims to persuade the reader that, far from being neutral arbiters of justice or engines of progress, the justices of the Supreme Court have “paved a trail of misery” with their decisions throughout American history. The stories he highlights are interesting and, for the most part, engagingly told: labor leader Eugene Debs as a victim of the railroad barons and on the losing end of a unanimous Supreme Court decision upholding his conviction under the Espionage Act; children toiling in mills and coal mines as a result of a Court decision striking down a federal act designed to ban child labor; the Court sanctioning the states’ power to sterilize and institutionalize women like Carrie Buck; five justices on the Roberts Court shielding big corporations from lawsuits brought by plaintiffs like Gladys Mensing, who developed a debilitating disease from using one drug company’s product.
Telling these stories serves the progressive constitutional project, broadly understood. Part of that project is to show how the decisions of nine unelected justices in black robes deliberating in secret inside a Marble Temple can have a serious impact on the lives of real people. As Franklin D. Roosevelt once said, the Constitution should be understood as “a layman’s document, not a lawyer’s contract.” Because Millhiser’s stories illustrate in rich detail the Constitution and the Supreme Court at work—and not at work—in the lives of everyday people, Injustices works in service of this project.
The most damning stories in Injustices are those in which the justices used their power of judicial review to strike down legislation designed to protect or support vulnerable minority groups—and did so on questionable constitutional grounds. In these instances, the Supreme Court appears at its most villainous. Millhiser identifies several decisions of this kind going back over 100 years. The Reconstruction-era Court narrowly interpreted the “Privileges or Immunities” clause of the Fourteenth Amendment in the “Slaughter-House Cases,” effectively neutering the amendment by interpreting it to protect only a handful of inconsequential rights. In the 1930s, four justices known as the “Four Horsemen of the Apocalypse” read their own libertarian economic theories into the Constitution and subsequently voided piece after piece of the New Deal. More recently, five justices on the Roberts Court gutted the Voting Rights Act in Shelby County v. Holder by artificially inflating states’ rights and struck down reasonable campaign finance regulations in Citizens United v. FEC by artificially inflating corporations’ rights. As Millhiser writes, in these cases the Supreme Court fabricated “extra-constitutional limits on the government’s ability to protect the most vulnerable Americans.” He argues that it would have been preferable if the Supreme Court had just gotten “out of the way” of the elected branches.
But it is clear from reading Injustices that Millhiser does not always want the Supreme Court to act in a restrained, passive manner and to be deferential to the elected branches. There are times when Millhiser believes the Supreme Court ought to intervene and strike down popularly enacted legislation. To wit, he chides the Court for not striking down state policies permitting the sterilization of women; for sanctioning rather than opposing the internment of Japanese-Americans during World War II; and for not being aggressive enough in dismantling the system of segregation in the South. Moreover, he clearly admires the jurisprudence of the Warren Court, which was extremely proactive in striking down unjust legislation and expanding rights for vulnerable populations. Despite being discussed in a part of the book titled “Getting Out of the Way,” the Warren Court did anything but. In Law’s Allure, Gordon Silverstein writes that the Warren Court expanded the Supreme Court’s power by developing the “command function”—in other words, telling the elected branches of government what they “must do.” Hence the litany of fondly remembered (by progressives) decisions of that era: Thou must desegregate schools (Brown v. Board of Education); thou must redraw legislative maps (Reynolds v. Sims); thou must read arrested individuals their rights (Miranda v. Arizona); thou must provide indigent clients with legal representation (Gideon v. Wainwright). The Warren Court had many virtues, but judicial restraint was certainly not to be counted among them.
So, given that Millhiser does not actually think the Supreme Court should always be passive, when and under what circumstances should it be active? If Millhiser does articulate a principled decision rule in Injustices for when the Supreme Court should defer to elected majorities versus exercise its power of judicial review, I can’t find it. That said, the cases he praises and those he criticizes suggest something very close to the guiding vision of former Justice William Brennan. In his famous rejoinder to Attorney General Edwin Meese III at Georgetown University in 1985, Brennan identified the principle of “human dignity” as the principle that structured his constitutional decision-making and guided his judgment of when to exercise judicial review and when to defer to elected majorities: “If our free society is to endure, those who govern must recognize human dignity and accept the enforcement of constitutional limitations on their power conceived by the Framers to be necessary to preserve that dignity and the air of freedom which is our proudest heritage.” Brennan’s vision, like Millhiser’s, is not one in which the Supreme Court always sits on the sidelines. It is one that respects majoritarian rule in most areas, but intervenes when elected majorities use their power to offend or limit the principle of human dignity. I also suspect that Millhiser’s constitutional vision would align fairly well with other progressive theorists such as Goodwin Liu, Pamela Karlan, Christopher Schroeder, and David Strauss, who have written explicitly on the topic of constitutional interpretation and the role of the courts in the American political system.
So what can be done if a Supreme Court majority should deviate from this principled and progressive understanding of its role and start behaving in a villainous manner? Very little, Millhiser admits. In his epilogue, he discusses the possibility of passing a constitutional amendment to eliminate the Supreme Court altogether but rejects it immediately as too radical and undesirable. He also proposes reviving an FDR-esque court-packing plan, but then rejects it as potentially damaging to the perceived neutrality and independence of the judiciary. Millhiser’s only real prescription is to persuade voters to elect progressive presidents who will appoint good progressive judges.
There is much to praise in Millhiser’s book—but also much to pick apart. From a political scientist’s point of view, there is one fairly serious flaw: Injustices ignores a whole body of scholarship on the limits, constraints, and dynamics of judicial power. It’s unclear whether the omission is driven by a polemical imperative—to make the book as damning for the Court as possible—or to make it more accessible for a popular readership. Regardless, what it yields is a far too simplistic rendering of the Supreme Court as a powerful and influential player in the American political system. This depiction puts Millhiser at odds not just with the prognostications of Alexander Hamilton but also with the findings of contemporary political scientists, nearly all of whom adhere to some variation of what Gerald Rosenberg called the “constrained court” model. Unlike proponents of the “dynamic court” model—many of whom also happen to be legal theorists and lawyers like Millhiser—political scientists tend to be skeptical of the claim that the Supreme Court can single-handedly promote or thwart an agenda of social change.
According to the “constrained court” view, there are four important institutional and political factors that limit the Supreme Court’s ability to directly and powerfully influence social policy. The first is that unlike Congress, courts are not self-starting institutions, so they can rule only on cases and questions presented to them. Second, the issue must first be translated into a statutory or constitutional-rights framework for the courts even to have the authority to rule on it, which is actually a very limiting requirement (the Court could not, for example, address issues of sexual harassment and workplace discrimination until these issues were successfully read into the language of the Civil Rights Act). Third, even if judges do have the authority to rule on an issue, they can only do so in a piecemeal, case-by-case fashion. And finally, their decisions are not self-executing—courts must depend on other entities or branches of government to implement their rulings.
And even in the rare case that all of these constraints are overcome, courts still cannot enact a policy agenda without the help of what Charles Epp referred to in 1998 as the “support structure” for legal change—i.e., the lawyers, legal institutions, funding sources, and legal strategies that enable judges and justices to make and support their rulings. The essential point is that while the Supreme Court’s rulings can and do have real consequences for real people, the Court can never be the lone or even the leading player in these complex legal-political dramas. For better or for worse, it is only ever capable of playing a supporting role.
The issue here is not that Millhiser neglects to kowtow to political scientists. That in and of itself would not be a problem (some might even consider this a virtue!). The problem is that Injustices oversimplifies a complex legal-political landscape and places too much weight and importance on the decisions of the Supreme Court. Take, for example, his description of Brown v. Board of Education, the decision that “dynamic court” model proponents point to as evidence of the Supreme Court’s progressive power and capacity. Millhiser admits that the Brown decision was largely ineffective in bringing about social change—six years after the ruling, only 0.4 percent of Nashville’s black students were going to desegregated schools—until Congress got “off the sidelines and join[ed] the fight” by passing the Civil Rights Act of 1964. But instead of recognizing this as a result of the institutional limitations and reach of the Supreme Court—as political scientists would—Millhiser chides the justices for not doing enough, for being too timid and “unwilling” to enforce the end of Jim Crow laws in the South.
When it comes to progressivism more broadly, Injustices poses a different problem. By painting a giant red bull’s-eye on the Marble Temple, Millhiser is telling activists, donors, and other progressive elites that the Supreme Court is the single greatest obstacle to enacting social change. Injustices could therefore have the unintended consequence of redirecting valuable resources from state and federal legislative races and other grassroots movements into an institution that is simply incapable of being either the villain Millhiser characterizes it as being or the savior we all would like it to be. As Rosenberg writes in The Hollow Hope, the Supreme Court can act as “fly-paper” for would-be reformers and social change advocates, “luring movements for social reform to an institution that is structurally constrained from serving their needs, providing only an illusion of change.” If it serves as a catalyst for this kind of strategic miscalculation and misappropriation of resources, Injustices could in fact set the long-term goals of the progressive movement back.
If I were to select a revised title for this book, I would call it Accomplices: How the Supreme Court Has Sometimes Aided and Abetted Injustice Throughout History. But I am a political scientist, not a publisher. Supreme Court decisions are important because they can shape, constrain, and direct the behavior of other actors—lower courts, future courts, state and federal legislators, and citizens. But the manner in which the Supreme Court can do so is powerfully constrained and almost always dependent on the other branches of government. So, while changing the ideological composition of the Supreme Court could and likely will help reverse some of the more egregious (to progressives) sins of the Roberts Court—Citizens United v. FEC and Shelby County v. Holder jump to mind—progressive gains through the Court will still be slow, incremental, uneven, and partial. Progressives should pay attention to the Supreme Court, especially in the next two presidential election cycles, but they shouldn’t spend too much time or resources on this hallowed but highly constrained institution. If they do, they and their progressive agenda might get stuck to the flypaper.