The Crisis of democracy in Europe and in US
The Supreme Court of the United States has the power to review the constitutionality of laws and thus intervene when it finds a federal or state law unconstitutional. When, how, how much – there are no clear rules. In practice, the judges appointed for life to the Supreme Court have too much and the wrong kind of power, which has been disputed since at least the early 1900s. In recent decades, it has led to an increasing party politicisation of the Court.
In this article, the focus is solely on constitutional interpretations and disputes over them. It does not discuss the Supreme Court’s other functions or its functioning in general. Nor is it about the US judiciary as a whole.
Generally speaking, it was the often “conservative” judges of the states and lower courts who helped save the country from President Donald Trump’s coup attempt when he refused to acknowledge the election defeat in 2020. In many ways, the US judiciary has a glorious history from which other countries still have much to learn.
How to reconcile today’s problems with a law written more than 200 years ago?
Many other countries also have an authority responsible for reviewing the constitutionality of legislation. It can be, for example, a separate constitutional court, the Chancellor of Justice or the Supreme Court. But in these countries, the constitution has been reformed as times have changed.
This is not the case in the United States. It is probably the only country where a constitution more than 200 years old is still in force.
In continental Europe, written constitutions were introduced in the mid-19th century when it became necessary to create a rule-based form of government to replace the old estate society and rule by a king. At the same time, legislation was systematised and the hierarchy of laws was taken into account: the provisions of the constitution were specified in other legislation, leaving as little room for interpretation as possible. The aim was to write legal texts unambiguously.
This is the most profound condition for the independence of the courts.
Judges are committed to basing their decisions on the law. They are therefore able to resist both external pressure and their own preferences. No provisions on lifelong tenures of judges, adequate pay, etc., can guarantee independence if legislation is deficient.
The US constitution is “riddled with ambiguous language”, writes Ian Millhiser, Vox’s senior correspondent on legal and constitutional affairs. He continues:
“The meaning of much of the Constitution is vague and uncertain, and it was vague and uncertain when it was drafted.” (Vox, Oct 12, 2020)
But even if the constitution were completely rewritten, it would be impossible to make it exact unless its provisions were bound up with lower legislation that specifies its articles. This would require a radical harmonisation of legislation across all states, especially concerning fundamental rights. That is unlikely to succeed in the current political climate.
So when it comes to “reviewing the constitutionality” of new laws, it means something quite different in the United States than in countries where constitutions have been comprehensively reformed.
Logically, in the end, the mission of the US Supreme Court is impossible, at least as long as the current constitution is in effect.
It is, however, worth noting: The legislation of the old member states of the European Union mostly meets the requirements of hierarchy and unambiguity of laws, but the legislation of the Union itself does not. This is the best indication that something completely new is needed, in addition to the traditional structures of the rule of law, if democracy is to develop in the current turn of the era. Europe is now facing the same kind of judicial-philosophical problems that the United States has been facing for a long time. There is clearly a stalemate on both sides of the Atlantic.
“Liberal” and ”conservative” judges
The United States adopted Anglo-Saxon jurisprudence – case law – where legislation (common law) is gradually built up from court decisions, precedents. It means that courts have some legislative power.
Moreover, as the president nominates judges and the Senate confirms the nominations, it is inevitable that judges – especially Supreme Court justices – are assessed on the basis of which party’s agenda they are likely to promote.
The practice of openly calling judges “liberals” or “conservatives” seems very strange from a continental European perspective. It would seem to violate the independence of the courts.
Stanford Levinson, professor of law at the University of Texas, whose criticism of the constitution is sharp and varied, sees no problem with this.
“[O]ur judges have the power to change the law, both common law and constitutional law”, writes law professor Lewis H. LaRue, whom Levinson quotes approvingly in his book. (Levinson 2006, 134)
Levinson sets out his own position as follows:
“Even if one endorses, as I personally do, the more or less political selection of federal judges, which recognizes the ineradicable significance of the high political views of judges, that does not in the least suggest that we are not entitled to hope that judges will forget, as it were, their low political party identifications. This forgetfulness should obviously extend to the actual decision of cases, where one hopes that justices will not be taking potential electoral consequences for their preferred political party or, even worse, political candidates, into account when making decisions.” (Levinson 2006, 138)
That was written in 2006. But today, Supreme Court judicial appointments run entirely along party political lines, and so do the decisions of the Supreme Court. This development has been possible precisely because “the more or less political selection of federal judges” has been considered legitimate. And as Levinson himself writes, there is no legal or institutional guarantee for the independence of judges; we can only “hope” for it.
The only solution would be precise legislation and the obligation for judges to decide cases according to the text of the law. Anyway, there is always room for interpretation. Interpreting the law is an important part of a judge’s job. It concerns, for example, the title of the offence, the scale of penalties, mitigating circumstances, and the substantive assessment of the case. However, it is different from enacting a law or “changing” it, as LaRue puts it.
Originalism is absurd jurisprudence – but so is also “judicial activism”
The peculiar situation has given rise to a peculiar trend in jurisprudence, which, as far as I know, is not found elsewhere in the world. It is called originalism or textualism, and it concerns precisely the (impossible) problems of constitutional interpretation.
In the fall of 2020, the Trump-appointed conservative Supreme Court Justice Amy Coney Barrett defined originalism as follows:
“So in English, that means that I interpret the constitution as a law, that I interpret its text as text and I understand it to have the meaning that it had at the time people ratified it. (– –) So that meaning doesn’t change over time. And it’s not up to me to update it or infuse my own policy views into it.” (Guardian, Oct. 27, 2020)
Coney Barrett here repeats almost word for word the judicial philosophy of his mentor, the conservative Justice Antonin Scalia.
According to Scalia, judges should adopt an approach in which their interpretations are guided by the text and not by intentions or ideals external to it, and by the original meaning of the text, not by its evolving meaning over time.
All right, but both Scalia and Coney Barrett are talking here about a legal text ratified in the late 1700s. It is simply anachronistic and absurd. It is hard to understand that learned, rational and civilised people seriously think like that.
To what extent can there be any explicit text or “original purpose” in the constitution that is relevant today? A lot if we are talking only about the most general principles. Hardly anything if the real problems facing legislators are to be resolved:
How should social media hate speech be curbed? Should private citizens have the right to carry loaded handguns or even assault rifles? Should the federal government have the right to ban large religious gatherings during a pandemic? Should there be free abortion in the country? Does the federal government have the right to require companies to take climate action? – The Supreme Court is constantly facing these kinds of questions, and no clear answers to them can be found in the constitution’s text.
When no exact answer can be found in the constitution’s text, the “original meaning” must be sought elsewhere. Finnish historian Ari Helo writes how Justice Scalia linked his opinions to a large number of references to Jefferson’s and Madison’s political statements, private letters, and other federalist papers. (Helo 2014, 280, ref. 5/5.)
The Founding Fathers’ political statements and private letters are not legal texts, and the Founding Fathers often did not even agree on them. Their texts can be interpreted this way or another. It gives the textualists who claim to adhere to the text of the law, and only to it, an opportunity to, as it were, slip through the back door to become legislators.
Helo also writes about originalism:
“Conceptual historians have rightly criticised the Supreme Court doctrine for ignoring the historical truism that it is fruitless to try to find intentions in matters that would have been unfamiliar or even incomprehensible to the authors of the constitution. (– –) Nor can the logic of the Jeffersonian model of democracy be explained in terms of the present situation, where its effects would be fundamentally different from those at the time of its creation.” (Helo 2014, 118)
In what way are the originalists right?
In defence of originalism/textualism, we should note that it was originally directed against “judicial activism” of some Supreme Court justices. Both “liberal” and “conservative” originalists opposed the practice of the Supreme Court exercising the legislative power of Congress by arbitrarily ruling this or that law unconstitutional.
Ian Millhiser writes that there have been three waves of originalism. (Vox, Oct 12, 2020). The first wave arose as a reaction to the “activism” of Supreme Court conservatives at the beginning of Franklin D. Roosevelt’s presidency. The Supreme Court vehemently opposed the expansion of federal power and torpedoed legislation necessary to Roosevelt’s New Deal policy. Roosevelt appointed judge Hugo Black to the Supreme Court, and he launched the theory of originalism. He thought that legislation should be left to Congress. Justices must stick to the constitution’s text and its “original intent”.
But originalism also led to thoughts of which it is hard to know whether to laugh or cry. An example is the 1965 Connecticut state law preventing married couples from using contraception. The Supreme Court struck down the law, basing its decision on the “right to privacy” guaranteed by the 14th Amendment to the constitution (Griswold v. Connecticut). The same justice Black dissented from the decision because the constitution’s text does not specify to which matters the right to privacy extends. So he did despite the fact that he personally strongly opposed the law.
The liberal Warren Court engages in “judicial activism”, and in reaction, conservatives become originalists
The second wave of originalism was “conservative”, writes Millhiser. It emerged in response to the precedential rulings of the “liberal” Supreme Court of the 1950s and 1960s (the so-called Warren Court).
Representatives of this second wave were, for example, “conservative” judges Robert Bork and Antonin Scalia. Their arguments were in part the same as those of the “liberal” Black: they argued that the Supreme Court should not engage in “activism” nor make decisions that belonged to an elected legislature. They often presented themselves as defenders of democracy and had grounds for doing so.
“A Court that makes rather than implements value choices” made by elected officials “cannot be squared with the presuppositions of a democratic society,” wrote Robert Bork in 1971. According to him, a proponent of such performance “claims for the Supreme Court an institutional role as an executor of a limited coup d’état”. (Vox, Oct. 12, 2020.)
The well-known and respected “liberal” judge Learned Hand also criticised the Warren Court, saying that the advancement of civil liberties is a task for legislators, not the courts.
The third wave: the originalists of the current Supreme Court
The third wave of originalism differs significantly from the previous two ones, writes Millhiser (Vox, Oct. 12, 2020). Now, originalism is used to justify particularly the conservative justices’ desire to overrule many established precedents, i.e. rulings that have the force of law and have been followed for decades. So, it is no longer that the originalists criticise the Supreme Court justices for “activism”, but rather that they themselves are ready for it.
Such originalist justices are, for example, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett.
Robert Reich, an American author, legal scholar and professor at the University of California, Berkeley, writes in the Guardian:
“Don’t for a moment believe the supreme court bases its decisions on neutral, objective criteria. (– –) A majority of the nine justices – all appointed for life – were put there by George W Bush and Donald Trump, presidents who lost the popular vote. Three were installed by Trump, a president who instigated a coup. Yet they are about to revolutionize American life in ways most Americans don’t want.” (Guardian, Oct 10, 2021)
So, the role of precedents in assessing the constitutionality of legislation is now at the heart of the legal-theoretical controversy. An example of this is the dispute over the right to abortion.
Originalism and precedents
Courts must base their decisions on precedents set by the Supreme Court. In that way, the precedents are a kind of law, even though Congress has not enacted them, and no congressional action is required to overturn them.
When can the Supreme Court overrule an established precedent that has the status of law, and when can it not? There is no clear rule on that.
Amy Coney Barrett, a “conservative” justice appointed by President Trump, said during her four-day confirmation hearings that she has a list of “super precedents”. According to her, they are “cases that are so well settled that no political actors and no people seriously push for their overruling.”
The argument is problematic, to say the least. Coney Barrett, herself a Catholic conservative, does not count, for example, the 1973 case of Roe v. Wade among the “super precedents”. However, for almost 50 years, that decision has guaranteed the right to abortion throughout the federation. State laws that have sought to overturn it have been routinely repealed in the higher courts as “unconstitutional”.
Therefore, one might think that Rose v. Wade has constitutional status in the settled case law. But that is apparently not the case, or some say it is, others say it is not.
Why not? Barrett argues that calls for overruling Roe v. Wade have never ceased. But if only those precedents on which there is no disagreement at all can be “super precedents”, the concept has no substance; it is an empty phrase. Then all cases dealing with issues that significantly impact people’s lives, i.e. cases on which there are disagreements, are de facto laws that five justices appointed for life can overrule if they wish.
On the other hand, Roe v. Wade is problematic in the sense that with it, there has indeed been “judicial activism”. With it, the Supreme Court decided to guarantee the right to abortion throughout the federation, invoking the 14th Amendment to the constitution, which guarantees the right to privacy. But, of course, neither the constitution nor its amendments provide anything about abortion. The decision on Roe v. Wade was a somewhat arbitrary interpretation by the Supreme Court.
It should be self-evident that such a matter as the right to abortion should be provided for by law. The law could then, of course, be opposed by democratic means: by seeking to influence public opinion and by exercising the right to vote.
On the other hand, as long as an up-to-date law does not exist, the precedent that has been consistently followed for 50 years should be adhered to. Repealing it is not “interpreting”; it is a very act of legislating.
The right to abortion has also consistently enjoyed the support of the majority of citizens. In spring 2021, the Pew Research Center (PRC) reported that 59 % of adults think abortion should be legal in almost all cases, while 39 % think it should be illegal in almost all cases. According to the PRC, these figures have remained relatively unchanged in recent years.
Now it seems that the conservative-majority Supreme Court will repeal the right to abortion, and no one can do anything about it. Many states already have bills waiting for the Supreme Court to give the green light to ban abortions. If such a decision is made, it will be hugely unpopular, probably leading to unrest.
Bounty hunting against abortions
A foretaste of things to come is the Texas state abortion law, which has effectively ended almost all abortions in Texas and caused overwhelming hardship especially for poor women who cannot afford to travel to another state for the procedure.
The Texas law contains a judicial twist that makes it difficult to appeal to the Supreme Court: it leaves enforcement up to private citizens, rather than state officials, by promising $10 000 to any civilian who sues an abortion clinic, doctor, or any other person who has assisted in the abortion procedure.
So, the law makes ordinary citizens into bounty hunters. (For more on the Texas law, see Vox, Sep. 2, 2021).
This case arose on the Supreme Court’s shadow docket, which does not contain the Court’s reasoning and does not take a position on the substance itself.
In a dissenting opinion after the vote, Chief Justice John Roberts wrote that he would have put the law on hold so that the Court could consider whether a state can avoid responsibility for its laws by handing off enforcement to private citizens. By doing that, a state can prevent the constitutionality review of its laws by the Supreme Court.
One would think, though, that there would be no need for considerations. The constitution is above state laws. No state can have the right to pass unconstitutional laws, or if it has, the legal system has been overturned. That is the only logical conclusion to draw, although in practice, of course, the situation is not so bad yet.
However, the situation is dangerous because the same procedure threatens to spread to other controversial issues and other states. The result can only be discontent, unrest, and chaos.
Theories in the service of a creeping coup
If originalist sophistry starts to be used to overturn established laws, we are indeed approaching a coup d’état, of which judge Robert Bork has warned. We may expect unrest and deepening divisions as people realise, or at least intuitively sense, the injustice in how things are being done.
Currently, originalism mostly serves conservative aspirations, as Millhiser shows in his excellent article. But in my opinion, that is not an argument for a legal-theoretical critique of originalism. Quite independently of political boundaries, originalism is an anachronistic and, in some respects, absurd judicial-philosophical construction. In the future, when the US constitution will be rewritten as an up-to-date and scientifically valid legal text, originalism/textualism will surely go down in history as a freak created by the first republican form of government. And then “judicial activism” will also be brought under control.
Party political intrigue in judicial nominations
If the Supreme Court truly were an independent institution whose job is to make decisions based on the law, judicial appointments would not be subject to the kind of dirty political game as they now are.
In Finland, for example, the president nominates the Supreme Court judges, just as in the United States, but the process is entirely routine and devoid of drama. It would never occur to anyone to ask whether an appointed judge is a “conservative” or a “liberal” or even a “leftist”. Likewise, as Eric Segall, a law professor at Georgia State University, says in a tweet, his Canadian acquaintances did not know the names of any of the judges of the Supreme Court of Canada. That is how it should be.
In the United States, on the other hand, there is a long tradition of political judicial appointments. The president nominates a justice, and the Senate must confirm the nomination in a public (nowadays televised) hearing. Thus, both parties have their organisations that constantly vet judges and have proposals ready to present to their party’s president and senators whenever an opportunity to appoint a judge arises.
A turn for the worse happened in 2016 when a Supreme Court justice’s seat became vacant more than eight months before the presidential election. The Republican-majority Senate did not allow President Obama to nominate a new justice. Donald Trump won the election, and one of his first tasks as a president was to nominate a Republican-friendly justice, Neil Gorsuch.
At the end of Trump’s term, the “liberal” Justice Ruth Bader Ginsburg died less than eight weeks before the election day. Now the same Republican senators who had prevented Obama from nominating a justice “because it was an election year” reversed their position completely. As a result, conservative Amy Coney Barrett’s nomination was confirmed on the fly just over a week before the presidential election.
As a result of Trump’s tenure, power relations on the Supreme Court are 6–3 in favour of the “conservatives”.
The politicisation of the Supreme Court is now the subject of a heated debate, in which, exceptionally, the justices themselves have taken part – with a hint of desperation.
In the autumn of 2021, four justices, “liberal” Stephen Breyer and “conservatives” Amy Coney Barrett, Clarence Thomas, and Samuel Alito denied allegations of politicisation. They criticised the press, and even the public, for the habit of talking about the justices as representatives of the party to which the president who nominated them belongs. It undermines the legitimacy of the Court, the justices said.
In reality, the legitimacy of the Supreme Court has been eroded in recent years by the ruthless and dishonest way in which power relations on the Court have been turned in favour of the Republicans – perhaps for decades to come. So far, it is a fact that the Court has legislative power. Therefore, it is not irrelevant whether the Court acts in accordance with the wishes of the majority of the minority of voters. For example, the liberal Warren Court, while guilty of “judicial activism”, nevertheless made decisions that had the support of the majority of voters.
Justices for life
Justices are appointed for life – literally. It has had all sorts of consequences.
Some justices hang on to their posts even when they are old and ill. Levinson tells about Justice William O. Douglas, for example, who insisted on continuing in office even after suffering a debilitating . As a result, his colleagues decided basically not to count his vote in cases where it would have been decisive. (Levinson, 2006, 129.)
Justice Ruth Bader Ginsburg suffered multiple cancers but refused to retire. In the autumn of 2020, she eventually died shortly before the election day, and President Trump was allowed to nominate a successor.
Now Justice Stephen Breyer, who is 83-year-old, is being pressured to resign so that President Biden could nominate a successor before the 2022 midterm elections, in which the Senate majority may shift from Democrats to Republicans. Breyer has asserted that he does not “intend to die on the court” It sounds a bit macabre as the entire nation is watching with an eagle eye on how long he might survive.
(Edit: in january 2022 justice Breyer announced his decision to retire from the Court.)
On the other hand, some justices are tactically timing their resignations according to who is president and which party’s candidate would succeed them. It has also become customary to appoint young judges to maintain the balance of power in favour of one’s own party for as long as possible.
Life tenure does not necessarily need to mean “until death”, writes Levinson. In many countries, even judges for life have a mandatory retirement age, often including a high age limit for the appointment. Levinson thinks the best solution would be to limit the justices’ tenure so that the opportunity for a nomination would be more equitable for each president. (Levinson 2006, 123.)
The proposal makes sense. But the roots of the problems withthe Supreme Court ru much deeper.
The creeping coup and the institutional deadlock
Traditionally, the Supreme Court has enjoyed relatively high prestige. In the 1960s and even in the 1970s, it acted as a kind of safety valve, making rulings in line with the will of the majority of the citizens when they could not be enshrined in law because of Senate wrangling. The system worked relatively well even after that, as long as the leading politicians exercised a degree of self-control.
Now the situation has changed. With the current composition, the Court is to rule on issues that involve not only abortion rights but also, for example, the right to bear arms, election financing, the obligations of oil companies to combat climate change, and state legislation seeking to restrict voting rights.
If the current Court pursues an agenda that does not have the support of the majority of citizens, as is feared, the result can only be deepening discontent, erosion of institutional legitimacy, and unrest.
The press is openly discussing the possible coup attempt in the upcoming elections by the movement built on the support of Donald Trump. However, the most relevant coup-like event is what has happened in the Supreme Court.
In 2020, the lower courts blocked Trump’s efforts to overturn the election results while many Republican politicians bent over backwards to support that dangerous absurdity. It was when American democracy, based on the rule of law, showed its strength. But the situation is still serious. Not only the Supreme Court but also Congress is deadlocked, as we showed in Part 1 of this article. It seems that there is no longer an institution at the highest federal level that can implement politics supported by the majority of citizens on any issue – or at least that has been made most difficult.
These problems will probably not be overcome unless the entire administrative structure is reformed and the constitution rewritten.
How to organise a debate on such reform – we have suggestions. They arise out of the experiences of Finland and the European Union, the will to resist the forms of collective self-deception and lawlessness that have occurred here.
 The federal government has a three-tier court system: district courts (the trial court), the circuit courts (the first level of appeal), and the Supreme Court of the United States (the final level of appeal in the federal system). In addition, the states have their own three-tier judicial institutions, which are provided for in their constitutions. The Supreme Court normally receives between 7,000 and 8,000 appeals a year, of which it only hears fewer than 80. They must involve a difficult problem of interpretation of the law so that the cases may have precedential value.
 For example, it is interesting to read what the French Enlightenment thinker Alexis de Tocqueville wrote about the American jury system and its role in civic education . It has interesting parallels with the New History Association’s proposal for a Citizens’ Truth Forum.
 However, there are countries with no written constitution at all, such as New Zealand and the United Kingdom, but they neither have any authority with the arbitrary power to overrule established law.
 Abortion is free and legal until around 22–24 weeks of gestation.
 President Trump was able to nominate three justices in four years, while Obama was only able to nominate two in eight years. Jimmy Carter, for example, did not get the opportunity to nominate any. To see all nominations for the Supreme Court in the US history, click here:
Our undemocratic constitution – Where the Constitution Goes Wrong (and How We the People Can Correct it).
Oxford University Press 2006.
Framed. America’s Fifty-one Constitutions and the Crisis of Governance.
Oxford University Press, 2012.
Yhdysvaltain demokratian synty. Unionin idea ja amerikkalainen historiankäsitys. Gaudeamus 2014
Oikeus historiallisena ilmiönä. Suomen lakimiesliiton kustannus Oy, Helsinki 1978
Lainkäyttö: oikeudenkäynnin perusteet ja lainkäyttöelimet siviili- ja rikosprosessissa. Lakimiesliiton kustannus, Helsinki 1995
Online articles and sites
- Most of these links are also in the text in relevant context.
The Originalism Blog. The University of San Diego.
Ralph A. Rossum: The Textualist Jurisprudence of Justice Scalia. Claremont McKenna College.
Ariane de Vogue, Supreme Court Reporter : Breyer defends state of Supreme Court in interview with CNN’s Fareed Zakaria. CNN, September 19, 2021.
Joan Biskupic, legal analyst & Supreme Court biographer: Dissension at the Supreme Court as justices take their anger public. CNN, October 1, 2021.
Four things we’ve learned about how Amy Coney Barrett might view abortion cases. CBS News 16.10.2020.
Robert Reich: Supreme court, Facebook, Fed: three horsemen of democracy’s apocalypse. The Guardian 10.10.2021.
Lawrence Douglas: To protect the supreme court’s legitimacy, a conservative justice should step down. The Guardian, Sep 21, 2021.
Biden urges supreme court to block Texas’ near-total abortion ban. The Guardian 18.10.2021.
Tom McCarthy: Amy Coney Barrett is a constitutional ‘originalist’ – but what does it mean? The Guardian 27.10.2020.
Edward Larson, professor, Pepperdine University: Amy Coney Barrett’s partisan nomination subverts the very intent of the Supreme Court – Anyone thoroughly steeped in true originalism or textualism would understand the Founders didn’t want the judiciary to be this political. NBC News, Oct. 22, 2020
Ryan C. Williams, assistant professor of law at Boston College Law School: Supreme Court justices say the institution must be nonpartisan — but they make it political. Justices Amy Coney Barrett and Stephen Breyer decry perceptions of bias on the court even as they contribute to it. NBC Sept. 19, 2021.
What every Republican senator has said about filling a Supreme Court vacancy in an election year. PBS Sep 22, 2020.
About six-in-ten Americans say abortion should be legal in all or most cases. Pew Research Center, May 6, 2021.
Ian Millhiser: The Supreme Court is drunk on its own power. Vox, Sep 14, 2021.
Ian Millhiser: The Supreme Court’s enigmatic “shadow docket,” explained. How the Supreme Court hides major conservative victories in plain sight. Vox, Aug 11, 2020.
Ian Millhiser: Originalism, Amy Coney Barrett’s approach to the Constitution, explained. Vox, Oct 12, 2020.
Ian Millhiser: Texas’s radical anti-abortion law, explained. Vox, Sep 2, 2021.