Why Has the National Mood Turned So Nasty and Is There a Remedy? Judicial Restraint May Be the Key
1.15.2021
In his book The Economic Consequences of the Peace,[1] published at the end of World War I, the noted economist John Maynard Keynes argued to the victorious powers that they should refrain from punishing Germany. His rationale was that the only way to guarantee that another war would not follow would be to foster trade and economic cooperation between the previously warring powers in order to achieve a state of economic interdependence between them.[2] His reasoning was that as nations traded with each other, they had a greater interest in building a mutually profitable relationship that arises from trade.[3]
Keynes believed that economic power was at least as formidable as military power, but that it was a force for peace which, unlike an army, paid for itself.[4] In the simplest of terms, Keynes argued that if Germany’s principal trading partner after World War I was France, killing French citizens in a subsequent war would be understood as being very bad for business.[5] Hence, a powerful motivation for peaceful relations would be the result of economic interdependence.[6]
We know that Keynes’s theory was largely ignored by world leaders. World War II followed in predictable due course with almost exactly the same participants as World War I. That mistake resulted in the deaths of 85 million people.[7]
Having learned a painful lesson from history, the Marshall Plan,[8] which was put in place at the end of the Second World War, applied the reasoning of Keynes. The United States assisted in the rebuilding of Western Europe as a single commercial enterprise with the warring parties in a state of economic interdependence. This has largely resulted in 75 years of relative peace in Western Europe, from 1945 until today. Such a period of sustained peaceful cooperation is unprecedented and difficult to find elsewhere in history.
Keynes’s vision of interdependence has become relevant yet again, but not the economic interdependence that arises out of trade. Rather it is relevant in the form of political interdependence arising out of compromise.
Of course, today we do not face the prospect of war in Europe, but we are experiencing a level of domestic struggle that threatens American democracy more than any military adversary ever did.
We are at risk of becoming tribal. We are losing a united sense of purpose which has manifested itself in, among other things, a lack of civility in our public discourse on nearly every social issue. Our political leaders treat one another as enemies rather than as colleagues. No one on either side of the political divide gives an inch when we no longer appear to share common interests. The polarization in Congress is leading us into this new national mood.
This breakdown of our national mood has been blamed on individual politicians and their political parties. That is the blame game that is typical of American politics. But what is happening is more fundamental. We feel we do not need each other and much of the cause is institutional.
We, as members of the bar, need to consider that one of the contributing, if not principal, causes of this breakdown may be our own judicial system, right up to the Supreme Court of the United States.
Without intending to do so, our modern judiciary may be undermining many of the opportunities for political compromise that used to typify politics. Republicans no longer feel they need support from Democrats and vice versa. Consider for a moment a hot button issue such as reproductive rights. In Roe v. Wade[9], the U.S. Supreme Court held that, although the Constitution does not explicitly mention any right of privacy, reproductive rights are founded in the Fourteenth Amendment’s concept of personal liberty and encompasses a woman’s decision whether or not to terminate her pregnancy.
The late Hon. Ruth Bader Ginsburg herself was critical of the leap that Roe v. Wade represented, and publicly opined that the decision “seemed to have stopped the momentum on the side of change.”[10] She remarked that she would have preferred that abortion rights be secured more gradually, in a process that included the legislatures and the courts.[11] She was also troubled by the fact that the focus in Roe v. Wade was on the right to privacy, rather than on women’s rights.[12]
Putting aside those who favor or oppose a woman’s right to choose, one needs to concede that judicial resolution of this issue came at a steep political cost, namely, the loss of the societal benefit that arises out of mediating a political compromise on such an issue, and a missed opportunity to reach a political solution, difficult and time-consuming as it might have been. Particularly after Roe v. Wade, there appears to be a limited need to reach compromise on key issues that could have promoted a sense of shared purpose, civility and even friendship among the members of Congress. After Roe v. Wade, the right to an abortion has become a political issue focused on a physician’s right to perform the procedure rather than about women’s right to choose.
Multiply the effect of the judicial resolution of Roe v. Wade by the number of controversial issues determined by the courts over the years and you have a nation increasingly ruled by judicial fiat rather than the democratic process. Simultaneously with the erosion of this process is the rise of social media and the growing reliance upon such platforms as primary news sources. On social media, anyone can post their ideas, and everyone is entitled to their own version of the facts.
Why should politicians compromise with members of the opposition when a lawsuit will settle the issue? No need for members of Congress to work with each other . . . just vilify. If members of Congress are unable to compromise, why should the people? If we also cannot agree upon what is true, we have completely lost the sense that we are politically interdependent and a unified country.
The consequence of this lack of political interdependence is the creation of a culture that indeed must be “canceled.”
Of course, there are issues that demand judicial determination. However, take the issue of the right of women to vote, which was ultimately resolved in the political arena. Both women and men were elevated by amending the Constitution because we emerged more united as a nation. The true marker of political interdependence is a sense of a shared benefit that arises from working together.
When Roe v. Wade and similarly divisive issues are decided by the courts, that erodes the need to find common purpose. Instead, these opportunities are struck aside and the public concludes that national policy is set by a majority of the U.S. Supreme Court. Notwithstanding the fact that most of us do not quarrel with the determination in Roe v. Wade, the obvious loss we suffer as a nation is the erosion of the political process.
The judiciary is the only branch of government that retains a modicum of respect and esteem from broad swaths of America. Many trust only the judicial branch to be a (mostly) fair arbiter of controversies and have little faith in either of the other two branches of government. It is sad to note that many would rather rely on an activist court than on “the best Congress money can buy.”
The members of Congress must again come to the realization that they need to deal with one another to reach consensus in order to achieve anything resembling progress. But it is clear that Congress needs help. Only the judiciary can supply what is needed by being far more circumspect with regard to the issues chosen for determination.
Some advocates for social justice may not agree with this call for judicial restraint. After all, activist judges tend to be liberal, so social justice prevails. Putting aside that the judicial branch of government is the most undemocratic of the three branches, those who disagree should consider that if Donald Trump had won re-election, the Supreme Court could have become, in his last term, conservative by seven to two. What if even only five of the seven conservative justices decided to be activists for right-wing causes? We must all consider that activism in the law is a sword that can cut both ways.
The best solution is more of the judicial restraint that many in the judiciary already practice every day. Judges at all levels have resisted the temptation to impose whatever their notion of justice is and have referred matters for legislative action unless there exists in law or the Constitution a clear mandate to determine that dispute.
Notwithstanding the fact that cases dealing with issues such as reproductive rights are rare, the impact of their judicial determination has been a factor in destroying our national unity. Every time issues like these are decided by the judiciary, the opportunity for political compromise is lost, as is the realization of political interdependence.
There is an ominous story I wish to share out of my own wife’s family. She had a great-great-grandfather who was born in England but had emigrated to Ohio as a young man. He was a builder and was sent to Louisiana to work on a project in the late 1840s. He was an abolitionist and, unfortunately for him, an outspoken one. For his views against slavery that he voiced while residing in New Orleans, he was murdered, and his body was sent back to Ohio in a box. He might be considered one of the earlier casualties in what soon after became the Civil War.
Could history be in the process of repeating itself, yet again? Could this division we are in the midst of lead to a much larger violent conflict?
It is sad that some in America seem to want it.
It is time for the judiciary, at every level, to resist the temptation to legislate and to thereby force Congress to engage in the game of tug of war that breeds compromise, civility and a renewed appreciation of the wondrous document that our Constitution is.
Hon. Charles E. Ramos served as a Supreme Court judge in New York County for 31 years, including 23 years in the Commercial Division until his retirement in 2018. He serves as a judicial hearing officer in that court and is the co-founder of the firm Ramos & Artal, which is devoted to alternative dispute resolution and where he serves as a mediator, arbitrator and expert neutral. This article first appeared in N.Y. Litigator, a publication of NYSBA’s Commercial and Federal Litigation Section.
[1].John M. Keynes, The Economic Consequences of the Peace 211-12 (1919).
[2]. Id.
[3]. Id.
[4]. Id.
[5]. Id.
[6].Id.
[7].“International Programs—Historical Estimates of World Population—U.S. Census Bureau,” https://www.census.gov/ popclock/.
[8].The Marshall Plan—Summary and Significance, Encyclopedia Britannica, Hogan (1987), https://www.britannica.com/event/Marshall-Plan.
[9].Roe v. Wade, 410 U.S. 113, 152-153 (1973).
[10].M. Heagney, Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit (May 15, 2013), https://www.law.uchicago.edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade-during-law-school-visit.
[11].Id.
[12].Id.
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