Raphael’s “School of Athens,” painted in the early 16th century, famously depicts Plato and Aristotle in dialogue about their respective philosophical approaches. Plato points skyward to emphasize the primacy of abstract principles – found in the Realm of Forms – whereas Aristotle extends the palm of his hand over the ground, emphasizing the need to take account of the particulars of earthly reality.
A print of this painting hangs in my office, and I often refer to it when discussing constitutional law with my students. Although I do not know exactly what Raphael had in mind, I like to think the artist was suggesting that wisdom lies in a balance between a commitment to high principle and a responsiveness to the actual challenges of modern life. Certainly, I believe that both types of considerations should guide the decisions of those empowered to interpret our Constitution – especially the nine individuals with final say about its meaning who sit on the United States Supreme Court.
For those who think that wise judging involves the application of principle as informed by social need and likely consequences, the Supreme Court’s performance over the past couple of decades should be a source of concern. Perils such as dysfunctional political institutions, the ravaging effects of climate change, and serious public health threats cry out for governmental responses. But time and again, narrow court majorities have pointed heavenward, invoked abstract principles, and thwarted efforts to address these perils by other actors within our constitutional system.
Start with our dysfunctional political institutions. Many on both the right and the left appreciate that unbridled partisan gerrymandering is having deeply corrosive effects on our democracy. For example, in 2022, a mere 36 out of 435 races for seats in the United States House of Representatives (8 percent) were decided by margins of 5 or fewer percentage points. Eighty-four percent of elections to the House were either uncontested or decided by margins of 10 or more percentage points. The average margin of victory in contested House races was a staggering 28 percent.
Many on both the right and the left appreciate that unbridled partisan gerrymandering is having deeply corrosive effects on our democracy.
The incentives for legislative compromise in such a situation are all but nonexistent. Indeed, for the many House members who occupy safe districts, just about the only thing that could threaten their reelection would be to work across the aisle and find common ground with members of the other party. For this would invite a primary challenge by a more extreme candidate.
Several years ago, two lower federal courts ruled in favor of voters who alleged that several of their constitutional rights – including the rights to equal protection under law and free speech – were being violated by the extremely gerrymandered districts in which they resided. But on appeal, in Rucho v. Common Cause (2019), the Supreme Court disagreed and held that lower federal courts must refrain from considering such claims. Partisan gerrymandering claims, the court explained, fall within the formal category of “political questions” that cannot be resolved by federal courts.
Many on both the right and the left also believe that campaign contributions and expenditures by extremely wealthy individuals and entities such as corporations and unions are distorting policy and undermining the broader public interest. In response, Congress and state legislatures have sought to address the influence of money in politics through measures regulating such contributions and expenditures. State legislatures also have sought to impose term limits on members of Congress. Theoretically, term limits would free senior senators and representatives from the burdens of fundraising. They also would ensure more legislative turnover.
But here again, the Supreme Court has said no. In a line of cases culminating in Citizens United v. Federal Election Commission (2010), the court has held that most measures regulating campaign contributions and expenditures violate the First Amendment’s free-speech guarantee. And in U.S. Term Limits v. Thornton (1995), the court held that the structure of the Constitution does not permit state legislatures to regulate the qualifications of congressional office-seekers by restricting the number of terms they can serve.
Perhaps most alarming are recent steps that the Supreme Court has taken – and the additional steps it is poised to take – to hamstring federal administrative agencies from responding to emergent and persistent challenges that require national action.
In its last two terms, the Supreme Court has invoked a new “major questions doctrine” to forbid federal agencies from (1) enacting a temporary measure designed to slow the spread of COVID-19 in the workplace (National Federation of Independent Businesses v. Department of Labor (2022)); (2) adopting a “Clean Power Plan” that would have encouraged power plants to use more clean-energy sources of production (West Virginia v. EPA (2022)); and (3) forgiving student debt to address economic difficulties brought on by the COVID-19 pandemic. (Biden v. Nebraska (2023)).
These decisions foretell nothing less than a revolution in administrative law. Previously, federal courts deferred to the judgments of federal agencies when they adopted regulations based on reasonable interpretations of their authorizing statutes. (As an aside, the Supreme Court has taken a case in the upcoming term in which many expect it to formally overrule the precedent, Chevron U.S.A. v. Natural Resources Defense Council (1984), which established this bedrock deference principle.) Now, however, under the new major questions doctrine, agencies will be presumed to have exceeded their statutory authority when they take actions having “vast political or economic significance” of which Congress has not provided “clear” approval in its authorizing statutes.
Also, lest one think there will be no problem where Congress has provided clear approval of agency actions having vast political or economic significance, the Supreme Court has forecast that it likely will hold such grants of power unconstitutional. The reason? A revived “nondelegation doctrine” that formalistically treats broad delegations of regulatory power from Congress to federal agencies – most of which are part of the executive branch – as impermissible efforts by Congress to provide executive branch entities with legislative power.
The Supreme Court has not found a violation of the nondelegation doctrine in 88 years, even in situations where the underlying delegation of regulatory power has been exceedingly broad. But in recent opinions, several members of the court have expressed interest in revitalizing the doctrine. Moreover, the court has taken a case in the upcoming term in which the petitioner has requested it to apply the doctrine to hold a federal regulatory measure unconstitutional. Many observers expect the court to act favorably on this request. If it does, the combined effect of the major-questions and nondelegation doctrines could pave the way for a significant dismantling of federal regulatory authority. And with Congress hopelessly deadlocked by runaway partisanship, the ability of the federal government to address evolving and persistent public-policy problems could be seriously undermined.
Pressing public need is not a basis for permitting a plainly unconstitutional law to take effect. But none of the cases mentioned in this commentary has involved laws, agency actions, or conduct that plainly exceeded the scope of the Constitution. In fact, every one of these cases engendered strong dissents from either three or four members of the court. Each of these dissents objected to the majority’s invocation of abstract principles and refusal to accord any significance to the underlying difficulties that had prompted the challenged governmental actions.
The Supreme Court is right to be principled and to take the long view when it elaborates constitutional meaning. But if the court continues to regularly interpret the Constitution to prevent experimentation with measures designed to address our daunting modern problems – measures that have somehow been enacted or adopted notwithstanding our broken politics – it will render our Constitution a barrier to, rather than a vehicle for, securing a more perfect union. Our constitutional law needs a little Aristotle. It cannot be all Plato, all the time.