The Myth of the Imperial Judiciary

Why the Right is Wrong about the Courts

Mark Kozlowski

• Publisher: NYU Press
• Year: 2006
• ISBN:
  9780814749296
• Topic: Law
• Subtopic: Courts
• Index: Law

Few institutions have become as ferociously fought over in democratic politics as the courts. While political criticism of judges in this country goes back to its inception, today’s intensely ideological assault is nearly unprecedented.

Spend any amount of time among the writings of contemporary right-wing critics of judicial power, and you are virtually assured of seeing repeated complaints about the “imperial judiciary.” American conservatives contend not only that judicial power has expanded dangerously in recent decades, but that liberal judges now willfully write their policy preferences into law. They raise alarms that American courts possess a degree of power incompatible with the functioning of a democratic polity.

The Myth of the Imperial Judiciary explores the anti-judicial ideological trend of the American right, refuting these claims and taking a realistic look at the role of courts in our democracy to show that conservatives have a highly unrealistic conception of their power. Kozlowski first assesses the validity of the conservative view of the Founders’ intent, arguing that courts have played an assertive role in our politics since their establishment. He then considers contemporary judicial powers to show that conservatives have greatly overstated the extent to which the expansion of rights which has occurred has worked solely to the benefit of liberals.

Kozlowski reveals the ways in which the claims of those on the right are often either unsupported or simply wrong. He concludes that American courts, far from imperiling our democracy or our moral fabric, stand as a bulwark against the abuse of legislative power, acting forcefully, as they have always done, to give meaning to constitutional promises.

1
The Imperial Judiciary and Its Malcontents

Prologue: Strange Bedfellows

Mark Tushnet is a well-known professor of constitutional law at Georgetown University. In 1998, he published an article in the venerable democratic socialist quarterly Dissent entitled “Is Judicial Review Good for the Left?” He began by expressing puzzlement that “[m]any liberals have warm and fuzzy feelings about judicial review,” the power according to which courts may declare statutes to be unconstitutional and void.¹ Such feelings, he asserted, were quite unwarranted:

Looking at judicial review over the course of U.S. history, we see that the courts have regularly been more or less in line with what the dominant national political coalition wants. Sometimes the courts deviate a bit, occasionally leading to better political outcomes and occasionally leading to worse ones. Adapting a metaphor from electrical engineering, we can say that judicial review amounts to noise around zero. It offers essentially random changes, sometimes good and sometimes bad, to what the political system produces.²

This is a conclusion guaranteed to dampen warm and fuzzy feelings: the courts follow the election returns, and the election returns certainly do not always follow the liberals. Yet, Tushnet ends his article with this intriguing speculation:

Things would be different, of course, if we had better judges. But we’ll get better judges only if we have better politics. And if we have better politics, we might not need better judges.³

Tushnet then spent some time pondering how to construct a “better politics.” In 1999, he published the fruit of his ruminations, the title of which sets forth his program: Taking the Constitution Away from the Courts. Why does Tushnet wish to take the Constitution away from the courts? Because if we replace conventional judicial review with “populist constitutional law,” which will “distribute responsibility for constitutional law broadly” throughout the polity, great bounty for the left will ensue.⁴

Tushnet has warm feelings for populist constitutional law, but he is more than a little fuzzy as to what exactly it is and how it will operate. It will, he says, allow “the public” to “participate in shaping constitutional law more directly and openly.”⁵ How? By employing “discussions among the people in the ordinary political forums.”⁶ This will be “a self-creating activity in which the people of the United States daily decide whether to continue to pursue the course we have been pursuing.”⁷ As Oscar Wilde said of socialism, populist constitutional law is clearly going to take a lot of evenings.

To put it mildly, this is something less than a comprehensive operational plan. But I’m not sure that the details matter all that much to Tushnet. What clearly does matter is that populist constitutional law holds forth the prospect of ending the agony of the American left. Specifically, “[f]reed of concerns about judicial review, we [may] be able to develop a more robust understanding of constitutional welfare rights, which are recognized in many constitutions throughout the world.”⁸ Thus, the result may be to remedy “[o]ur economy’s failure to satisfy the basic needs of many people.”⁹ In other words, populist constitutional law may bring European social democracy to our shores.

Lino Graglia is a law professor at the University of Texas. I am quite sure he would not quarrel with being characterized as one of the most conservative legal academics in the United States. One would think he wouldn’t have a good word to say about the likes of Professor Tushnet, a man whom he describes in a 1999 letter to the journal Commentary as “a self-described Marxist.”¹⁰

But, in the same letter, Graglia goes on to laud Tushnet as “an exceptionally able, independent, and original thinker.” And, even as he realizes that Tushnet’s book is rooted in dissatisfaction with the fact that the Supreme Court “can no longer be relied on to enact a left-liberal agenda,” Graglia contends that Taking the Constitution Away from the Courts is “an extremely valuable contribution to the cause of limiting judicial power.” And that cause, says Graglia, is a noble one. It is the Supreme Court, after all, “that has deprived the states of the power to restrict abortion, provide for prayer in schools, aid religious schools, limit the distribution of pornography, assign students to neighborhood schools, maintain an effective criminal procedure, prohibit flag-burning, and so on endlessly.” Thus, in the spirit that posits that the enemy of my enemy is my friend, Graglia concludes that something like Tushnet’s populist constitutional law might be just what the doctor ordered for the right: “The abolition of judicial review, returning decision making on basic social policy issues to the people of each state, would be the single most important step we could take to return the country to political and social health.”¹¹

It is not every day that one sees such jurisprudential concord between Thurgood Marshall’s admiring biographer and a man who in 1979 urged public officials in Texas to declare that federal court orders mandating busing for the purpose of school desegregation should not be enforced.¹² But their detente is not an occasion for celebration. For starters, the framers of the U.S. Constitution would likely have looked upon a scheme like populist constitutional law with some unease. In The Federalist, James Madison spoke of “[t]he danger of disturbing the public tranquillity” that would be occasioned by “a frequent reference of constitutional questions to the decision of the whole society.”¹³ One senses that Madison would not rush to embrace Tushnet’s daily “self-creating activity.”

This aside, however, it is clear that the Tushnet-Graglia accord is indicative of a deep antipathy to the judiciary, one that is not exclusive to one side of the political spectrum. Nevertheless I think that, if one excludes members of the hard left, to whom the entire American constitutional order is without legitimacy, the percentage of the left that would share Tushnet’s views with any enthusiasm is not high. It would at least not be high after the implications of “populist constitutional law” were considered soberly and the dissonance between populism and the constitutional imperative to protect the rights of minorities came to mind. On the other hand, as I have tried to establish in the Introduction, Graglia-like views are a fixture of the contemporary American right. Why is this?

“Something Was Supposed to Happen, and Didn’t”

The Chief Justiceship of Earl Warren lasted from 1953 until 1969. There is near-universal agreement that the Supreme Court under Warren’s leadership effected a jurisprudential revolution in American political life. It is therefore entirely appropriate that Lucas Powe begins his history of the Court under Chief Justice Warren with the following declaration: “The Warren Court created the image of the Supreme Court as a revolutionary body, a powerful force for social change.”¹⁴ One of the Warren Court’s admirers has summarized the nature of its revolution:

The Warren Court was the first and, so far, the only Court in American history that empathized with the outsider. . . . The Warren Court was the first Court in American history that really identified with those who are down and out—the people who received a raw deal, those who are outsiders, the marginal, the stigmatized. It was the first sympathetic treatment that blacks received from the Supreme Court. . . . Moreover, not only blacks but other minorities—religious minorities, political dissenters, illegitimates, poor people, prisoners and accused criminals—received sympathetic treatment.¹⁵

As revolutions tend to do, however, the Warren Court generated no shortage of critics and enemies. It, of course, won the hatred of segregationists because of Brown v. Board of Education and subsequent decisions that sought to eliminate de jure racial discrimination. The Court’s (less than consistent) defense of the civil liberties of American Communists caused Senator McCarthy himself to charge that Justice William Brennan “harbors an underlying hostility to congressional attempts to investigate and expose the Communist conspiracy.”¹⁶ Richard Nixon, capitalizing on public fears regarding rising crime and social unrest, made opposition to the Warren Court a centerpiece of his successful 1968 presidential campaign. In a typical blast at the Court, one we now read with grim irony in light of the record of the Nixon White House, he accused it of going “too far in weakening the peace forces as against the criminal forces in this country.”¹⁷

The Warren Court was also not exempt from the vigorous criticism of legal academics. One of the Court’s most powerful conservative critics was the late Philip Kurland, a constitutional law scholar at the University of Chicago. In a series of lectures delivered in 1969, Kurland decried the sheer number of precedents that had been overruled by the Court under Warren. As a result, he argued, “a very large number of constitutional landmarks that once were the law of the land were made into artifacts for the study of historians.”¹⁸ This disregard for stare decisis—the rule of adherence to precedent—plus what Kurland saw as the Court’s casual attitude toward explaining the constitutional reasoning for its decisions, had wrought a serious diminution of public respect for the Court:

The Warren Court accepted with a vengeance the task of protector of the individual against government and of minorities against the tyranny of majorities. But it has failed abysmally to persuade the people that its judgments have been made for sound reasons. . . . [It has exercised] a judicial arrogance that has refused to believe that the public should be told the truth instead of being fed on slogans and platitudes.¹⁹

Still, in marked contrast to the tenor of today’s court-bashing conservatism, Kurland did not proclaim the death or even the terminal illness of democracy in America due to what he viewed as unwise judicial activism. On the contrary, in a quite wonderful passage, he celebrated the Court’s function as a check upon purely majoritarian democracy:

[T]he Court is not a democratic institution, either in makeup or in function. . . . It is politically irresponsible and must remain so, if it would perform its primary function in today’s harried society. That function, evolving at least since the days of Charles Evans Hughes, is to protect the individual against the Leviathan of government and to protect minorities against oppression by majorities.²⁰

And, contrary to the conventional belief that the Warren Court met with a universal chorus of approval from liberal precincts, it faced no small amount of criticism from liberals for its boldness. The most prominent voice here was perhaps that of Archibald Cox, who, as Lyndon Johnson’s solicitor general, had encouraged the Court’s progress in certain realms of the law, especially in race discrimination cases. In a series of lectures he delivered in 1967, shortly after he left government service, Cox forthrightly endorsed many of the results reached by the Court. But these results, which Cox thought would win “general and enthusiastic praise . . . if laid down by a bevy of Platonic guardians instead of a court,” were too often reached with scant attention to interpretive rigor.²¹ The Court had therefore brought about “major institutional changes whose long-range consequences are difficult to measure and which the present Court seems to brush aside without careful consideration for immediate progress.”²² Cox saw a Court that, instead of adhering to any settled method of constitutional interpretation, too often issued decisions that “seem to turn on intuitive judgments of right and wrong rather than the impartial application of principle.”²³ Indeed, Cox argued, “some opinions of the Court seem to slide off into sentimentality or run libertarian dogma into the ground at the expense of the substance of liberty.”²⁴ But, like Kurland, Cox did not advocate any radical reaction to the Court’s waywardness. Instead, he simply admonished the Justices to pay “more attention to professional method.”²⁵

Kurland and Cox both made their criticisms in the final years of the Warren Court. After the Warren Court’s successor Court, under the Chief Justiceship of Warren Burger, had established itself, conservative criticism of the Court and of the judiciary in general began to take on a more worried—and eventually alarmist—cast. In short, the transition was made from criticism of judicial unwisdom to strident denunciations of supposed judicial power madness.

In 1973, the historian Arthur Schlesinger, Jr. published The Imperial Presidency, in which he argued that the executive branch of the federal government had come to accumulate powers dangerously beyond those granted it by the Constitution. In 1975, however, another scholar, the Harvard sociologist Nathan Glazer, adopted Schlesinger’s title to argue that the judiciary was in fact the branch of government that had broken the boundaries of its legitimate powers. Glazer’s article “Towards an Imperial Judiciary?” was published in the fall 1975 issue of The Public Interest and later appeared as part of what would become a highly influential symposium of neoconservative writings.²⁶

Glazer begins with a sweeping declaration: “The courts have truly changed their role in American life. . . . [They] are now far more powerful than ever before. . . . [They] now reach into the lives of the people, against the will of the people, deeper than they ever have in American history.”²⁷ But this is not his centra...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Foreword
• Acknowledgments
• Introduction: The Ballad of Alexander and Alexis
• 1 The Imperial Judiciary and Its Malcontents
• 2 The Constitution and the Judiciary
• 3 The Judiciary in History
• 4 The Judiciary and the Extent of Rights
• 5 The Judiciary and the Politics of Rights
• 6 The Judiciary and the Polity
• Conclusion: Why the Courts
• Notes
• Index
• About the Author