Both sides have their undemocratic forces: The ‘best and brightest’ vs. the rule followers
Timothy P. Carney
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The U.S. Supreme Court spent decades making left-wing social policy that never would have passed democratically. This included both Roe v. Wade and Obergefell v. Hodges as the two most notable rulings.
Then conservatives took a majority on the Supreme Court during the Trump presidency. And suddenly, some on the Left now object that the high court might dare to rein in the Biden administration.
IT’S NOT POPULAR TO SAY BUT CONGRESS IS THE BOSS OF THE GOVERNMENT
The case Jamelle Bouie is referring to above, Loper v. Raimondo, pits some fishermen against a federal agency that is trying to collect a fee Congress never authorized it to collect. So yes, you could see this case as industry vs. government, and if the ruling goes the way Bouie fears, it will be a matter of the Supreme Court versus the Biden administration.
More precisely, this looks like a battle of judicial branch vs. executive branch. If you know your U.S. Constitution, you know that there is a third branch: the legislative branch.
When the judiciary is battling the bureaucracy, what you have is two undemocratic parts of the federal government battling. Now “undemocratic” sounds bad, but our government was built so as to be not 100% democratic. The Founding Fathers were well aware of the drawbacks of pure democracy. As Federalist No. 55 notes, “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”
Every time the Supreme Court strikes down a law passed by Congress, it is undemocratic. But you could also say that the court is protecting a fundamental right. Also, if we didn’t have a bureaucracy, either Congress would have to micromanage everything or a new president could put his buddies in every federal job, and we would have nobody building up expertise in actually administering the government.
These days, the administrative state is the Left’s undemocratic arm, and the Supreme Court is the Right’s undemocratic arm. It’s true that things could be the other way around:
But there’s actually something ideologically fitting to the current alignment.
The Left’s un-democrats are “experts” — supposedly the “best and brightest” — who know better than the public or the politicians what is best for us. Recall the pandemic — or even recall earlier this year! — when Democrats and the news media scolded lawmakers who tried to overrule the public health experts because we should “trust the science” or defer to experts. This reflects the increasingly technocratic mindset on the Left today, which is the Left’s most anti-democratic sentiment these days.
The Right’s un-democrats today are the rule followers and rule enforcers. The conservative majority court sometimes tells state governments you can’t restrict gun ownership that way, because the rules [the Bill of Rights] say otherwise. In the Loper case, the conservative majority court may tell the bureaucracy, “Actually, you’re not allowed to impose a fee that Congress hasn’t authorized you to impose.”
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Conservatives are less likely to be technocrats and more likely to believe that rules and constraints are important for society.
So everyone’s a little bit undemocratic. The question is whether you think democracy should be constrained by the experts who know what’s best for us, or by the rules that were agreed to and laid down centuries ago.