Elites and Judicial Supremacy

Over at Public Discourse, Robert Lowry Clinton weighs in on the ascendancy of the Supreme Court as the Supreme Legislature that dictates national affairs.

Clinton argues that the emergence of an activist judiciary stems from an elite attempt to retain power over and against a democratic majority. This, he suggests, is contrary to the vision of the Founders.

I’m not convinced.

In the first place, Clinton gives evidence that the Founders were very keen to ensure elite control over the political process. Presidents were elected by way of the electoral college, which initially acted independently. Senators were not directly elected by voters until the early twentieth century. And of course Judges are appointed, insulated from voters by life-long tenure.

In view of the fact that today both Presidential and Senatorial elections are up to voters—and given the fact that judicial appointments are now part of the contact sport called partisan politics—if anything the governmental tilts today toward a far more democratic regime than the one envisioned by the Founders.

In this context, it would seem that what the Founders thought of as the healthy and necessary influence of elite opinion has been diminished, which has led to a concentrated attention on the judiciary, the last refuge from the omnipotence of voters.

Clinton writes: “Under the Framers’ plan, elitism and democracy were carefully built into the system and balanced against one another. Judicial supremacy destroys this carefully contrived balance by handing over the decisions that matter most to a single branch of government.”

But that can’t be right. Clinton has already pointed out that the changes in Presidential and Senatorial elections tilted the balance toward democracy and away from elitism. He could have added that the 24/7 news cycle, as well as the fact that what I call political pornography (political shout shows and so forth) are now profit centers for media companies, rouse voters. Add to that buckets of money for ads, think tanks, and political action committees. By my reckoning we have a great deal of democracy out there, more than enough to have given the Founders sleepless nights.

On the whole, I agree with the Founders. I know it’s not politically correct to say so, but I’m in favor of elite control over a great deal of national affairs, so long as that control is accountable to (but not in the thrall of) popular sentiments.

Too many conservative imagine that “elite” equals “liberal.” That’s obviously false, and the evidence can be found in the fact that on many issues American politics and social opinion has shifted rightward. This did not happen automatically, but rather because of articulate and effective leadership by conservative elites. Most Americans want to pay attention to their everyday lives, not politics, which is why every movement requires elite leadership.

Therefore, I think we should stop complaining about “elites” and get on with the work of doing what elites are supposed to do, which is to provide sensible, responsible leadership.