Looking back, historians labeled the 17th and 18th centuries the Age of Reason. The period from approximately the 15th to the 17th centuries historians named the Age of Exploration (or Discovery). And if some future historians give a moniker to our day, perhaps it will be the “Age of Celebrity.” From social media influencers to athletes to politicians, we want to make celebrities of just about everyone.

And this tendency has not bypassed the U.S. Supreme Court. For instance, justices these days appear on television shows, like “Sesame Street”; write their memoirs, for which they earn millions of dollars; receive rock star treatment at various events and conferences; have their personal workouts go viral; and even acquire nicknames, like the “Notorious RBG.” Similarly, big cases get massive headlines, confirmation hearings draw millions of television viewers and the death of a justice while still on the court is a national event with wall-to-wall media coverage.

But this “celebritization” of Supreme Court justices was not always the case. Early in our history, it was hard to get good candidates to take or keep a spot on the court. John Jay, our first chief justice, resigned that position to become the governor of New York. John Quincy Adams, a decade before he became president, turned down a position on the court. From 1810-1861 the court convened in the basement of the U.S. Capitol building. And just 100 years ago, George Sutherland was nominated and confirmed without even knowing it while on a trip to Europe. No wonder Alexander Hamilton argued at the founding that the Supreme Court would be the “least dangerous branch.”

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However, making celebrities out of Supreme Court justices is merely a symptom of a broader problematic trend: running to the court to get what we want rather than the more painstaking process of legislating. So perhaps historians will give another name for our day: the “Age of Courts.”

At some level, this is understandable — it is much easier to try and convince a few judges than hundreds of members in a legislature. Likewise, if one wins in court, one does not need to compromise with one’s opponents, since lawsuits are usually a zero-sum game. It is no wonder this type of activity is sometimes called “lawfare.”

Yet this tendency to turn to law rather than politics to get what we want is deeply damaging to our constitutional democratic republic. For instance, by outsourcing our contentious policy debates to attorneys and judges, our muscles of self-government atrophy.

Making celebrities out of Supreme Court justices is merely a symptom of a broader problematic trend: running to the Court to get what we want rather than the more painstaking process of legislating.

Abraham Lincoln warned of this danger. In his First Inaugural Address, he noted the tendency of people seeking to have “the policy of the Government upon vital questions affecting the whole people … irrevocably fixed by decisions of the Supreme Court.” The result, Lincoln lamented, was that in so doing “the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

When we cease to be our own rulers, we give up on self-government.

We have also lost control of the Constitution. We seemed to have imbibed the quip from former Chief Justice Charles Hughes that “the Constitution is what the judges say it is.” But while courts have an important duty to interpret the Constitution and apply it to disputes before them, our system of government is not a “juristocracy.” Other branches have a constitutional duty to interpret the Constitution and comport their behavior to it rather than just doing or passing what they please and letting the court decide whether they’re playing within constitutional bounds.

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This used to be more in the ethos of the other branches. Read early congressional debates and much of the discussion is over whether a bill is constitutional. For example, when a devastating fire destroyed much of Savannah, Georgia, in 1796, Congress ultimately decided not to provide federal relief to the city. Not because Congress didn’t care — there was certainly agony over the suffering the city residents had and were enduring — but because Congress didn’t read the Constitution as authorizing spending on relief for Savannah.

Or consider the debate over the 1964 Civil Rights Act, where one senator encouraged other senators to pass the bill and leave to the Supreme Court a determination of its constitutionality. The suggestion brought swift rebuke from his colleagues, who argued that senators aren’t under obligation to vote for bills they consider unconstitutional.

Now Congress passes legislation and, when pressed whether the new law is constitutional, members of Congress frequently respond with remarks similar to a representative recently, “Let’s let the courts decide whether it’s constitutional. That’s not for Congress to decide, that’s why we have courts to make that decision.”

We see something similar with the president. For example, it used to be that presidents would not veto bills on policy grounds, but only if the president viewed the bill as unconstitutional. Now we have just the opposite, with presidents releasing signing statements that they think the bill is unconstitutional but have signed it anyway.

We, as the nation’s sovereign, also have the duty to understand the Constitution and make sure it’s being followed. We exercise this oversight primarily through petitioning the government and voting.

This turning to the courts to solve our political disputes, not surprisingly, affects our politics. Litigation tends to be a zero-sum game — someone wins and someone loses. Courts are not institutionally designed to balance competing views and values and come up with a compromise where no one gets everything they want but also no one gets nothing they want.

But relying on litigation rather than legislation for contested political issues makes our politics resemble litigation where our elected representatives are unwilling to work with the other side and unwilling to settle for anything less than total victory. But legislating should not resemble the legal process. Perhaps this explains some of Congress’s current dysfunction and why we are so polarized.

While courts have an important duty to interpret the Constitution and apply it to disputes before them, our system of government is not a juristocracy.

It has not always been so. Rather than file a lawsuit or pack the Supreme Court to overturn the infamous Dred Scott decision, Congress sought to amend the Constitution. Similarly, rather than relying on the court to deal with discrimination in employment, Congress passed the Civil Rights Act of 1964.

All of this is not to downplay the good courts have done and the important role they play in our constitutional system. Besides resolving individual disputes, courts serve the important function of upholding the compromises that the people’s representatives, through the Constitution or Congress, have adopted. Thus, we need courts to police the division of power between the branches of the federal government or between the federal government and the states. Likewise, we need the courts to uphold the rights that have been ensconced in law when lawmakers, attuned to the better angels of their nature, have decided to protect minorities of all stripes who have little defense against a political majority.

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But we need to only rely on courts for their proper constitutional role. If we relied on our arms for standing and walking, not only would our legs atrophy, but we wouldn’t stand or walk as well as we could have with legs. So too with the judiciary. We should cease trying to turn them into a legislature.

Rather than spending so much time, effort and money on litigation, we should instead focus on coalition building, the political process and compromise. After all, our Constitution was a product of compromise and designed to facilitate it. We may not get everything we want, but our republic will be healthier. And having a healthy constitutional democratic republic is something we should want above any short-term gain. It is a blessing handed to us by our ancestors and one we should preserve for our posterity. To do so, let’s keep courts in their rightful place and reinvigorate the republican government muscles we have let sit far too often for too long. Our Constitution starts, after all, not with “We the Judges,” but with that important reminder of whose duty it is to preserve our republic: “We the People.”

James C. Phillips is director and associate professor of the Constitutional Government Initiative of the Wheatley Institute at Brigham Young University.

This story appears in the July/August 2024 issue of Deseret Magazine. Learn more about how to subscribe.

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