As is now well-known, the Supreme Court agreed to review President Trump’s travel ban and has, to date, partly lifted the temporary injunction that had obstructed the ban’s implementation across the country. The Trump Administration sought out the review of the decisions that were delivered by the Fourth and Ninth Circuits earlier in May. The Court ruled that the ban was to be executed but that it ‘may not be enforced against an individual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States.’
The opinion of the Supreme Court was delivered per curiam, which means that the decision was delivered by the court as a collective body, and argued that the injunctions issued by the lowers courts barred enforcement of the travel ban against foreign nationals residing abroad who have or had no connection whatsoever to the US. The essence of this position was that no real burden or violation of an American’s rights would follow from a ban that impacted individuals who were foreign nationals. The US government, in effect, had no duties of rights to foreign nationals—that they were not protected by the US Constitution and that no rights-based objections could be brought for against the Administration’s travel ban that relied on the rights of foreign nationals.
Now what does this technical legal maneuvering all mean for concerns pertaining to consent? The Supreme Court’s intervention in this matter is an instance of judicial review, which is when an apex court—that is to say, the top court of a jurisdiction—weighs-in on an issue that would ordinarily be settled by lawmakers. If legislators pass a bill that subsequently provokes a lawsuit, and if that lawsuit works its way up the judicial ladder by virtue of its contentious or unsettled nature, the issue is ultimately decided by the Supreme Court. It is, in effect, judges deciding issues of legislation, which is ordinarily understood in a democratic system as falling within the province of lawmakers.
Why does judicial review matter to the integrity of consent? For one thing, if a member of Congress helps pass a law that we do not like, we have the option of altering our vote and supporting candidates who could help undue the passage of distasteful law. No such possibility holds for cases that are decided by the Supreme Court. Why? Because the opinions of the Supreme Court become part of the living constitution—the body of opinions that sit side-by-side with written Constitution and all its amendments. The Constitution cannot be changed merely by reconstituting our votes. It is a much higher bar and changing it requires much more than a mere majority in Congress.
This prompts all sorts of troubles for democratic governance. The Supreme Court, first and foremost, is an unelected body that is unaccountable for its actions to the voting public. There are good reasons for this. A court that responds to the whims and wishes of the public cannot do its job, which is to implement or otherwise interpret the law, notwithstanding the desires of certain groups. It is the job of legislators to respond to the changing tides of public opinion, not the courts.
And yet none of these reasons that bear upon judicial independence do away with whatever standing concerns there might be that the courts are enacting laws without the consent of the people. The traditional dividing lines between conservatives and liberals on judicial review now tend to blur. Liberals typically favour judicial activism—when the courts take legislative matters into their own hands and pass controversial landmark opinions like Brown v Board of Education, which helped desegregate schools in the 1950s—because they tend to push progressive agendas. Conservatives, however, typically reject or otherwise condemn judicial activism, arguing instead for what is called ‘originalism’: that the job of the courts is merely to interpret the Constitution rather than to create law afresh by interpreting the issues that come before it in ways that were unintended by the Founding Fathers.
And yet here we are with a Supreme Court decision to which many liberals object and to which many conservatives would agree. Whereto the campaign for judicial activism? It appears that those of us who are concerned with the integrity of consent in a political context in which it is under constant threat now make for strange bedfellows with what is usually a liberal collection of individuals who support judicial activism.
Can concerns for consent be reconciled with judicial activism? It appears that the tension is very real and will not do to simply fall back along partisan lines and endorse judicial activism when it benefits our preferred politics, and condemn it when it does not. Of course, judicial review comes in different shapes and sizes. In the EU, the apex courts are quite strong and can, by virtue of their opinions, remove and insert laws into the law-books with their opinions. The US Supreme Court does not quite have the same power to remove laws from the statutory books but the effect of their opinions is not much short of it. Arriving at the version of judicial review that does not violate the integrity of consent is an issue to which we will return in subsequent installments of Consent.com’s editorial board’s op-eds.