The Ongoing Dialogue
THE ONGOING DIALOGUE
Powerful symbols nourish the belief that the Court alone decides the meaning of the Constitution, or at least has the last word. There is something reassuring about a blindfolded lady holding the scales of Justice, unswayed by politics. We sing praises to the “rule of law,” impartiality, judicial independence, and we yearn for even-handed justice. The public is attracted to the idea of an institution that can right the wrong, protect embattled minorities, and come to the rescue of the isolated individual (which might be us).
Perhaps citizens look to the Court as a sort of parental figure, telling them what is constitutionally permissible and guiding them to the true path. If that is the model, American citizens have never played the obedient and respectful child, dazzled by the parents’ wisdom and intelligence. Citizens protest whenever they like, letting the Court know in blunt terms that it has bungled again in judging constitutional and national values. At times, the parental figure is likely to tell the child: “The kind of question you just presented to me is one I don’t answer. You figure it out.”
In truth, we want an independent court but hope that other forces are available at times to check the Court to make it reverse directions and adjust doctrines. We remain of two minds. As Robert Dahl noted, Americans are not quite willing to accept the fact that the Supreme Court “is a political institution and not quite capable of denying it; so that frequently we take both positions at once. This is confusing to foreigners, amusing to logicians, and rewarding to ordinary Americans who thus manage to retain the best of both worlds.”1
For more than a century, the legal profession claimed that judges “found” the law rather than made it. No one takes that seriously any more, even if judges still begin their sentences: “We find. …” Writing in 2003, Justice Sandra Day O’Connor recognized the continuing link between law and politics. When it comes to putting judicial interpretations “into practice, ultimately, the Court must rely on the other branches of the government.” She reminds us that if “one looks at the history of the Court, the country, and the Constitution over a very long period, the relationship appears to be more of a dialogue than a series of commands.”2
In a perceptive essay, C. Herman Pritchett noted that the disciplines of law and political science drifted apart for semantic, philosophical, and practical reasons. “Law is a prestigious symbol, whereas politics tends to be a dirty word. Law is stability; politics is chaos. Law is impersonal; politics is personal. Law is given; politics is free choice. Law is reason; politics is prejudice and self-interest. Law is justice; politics is who gets there first with the most.”3 With the options drawn that crudely, it is hardly surprising that the courts look attractive. Many parents dream of their child being a judge; they are less likely to want a son or daughter to be a politician. Yet we need government, in one form or another, and that means public officials (or “politicians”) who are elected to office or serve as advisers and staff. Although some people hate to admit it, the judiciary is part of government and is simultaneously independent and interdependent.
The Claim of Judicial Supremacy
Academics and public officials often defend judicial supremacy as essential to the rule of law. Law school casebooks and newspaper stories typically treat Supreme Court decisions as final and dispositive. Why? As our analysis makes clear, each decision by a court is subject to scrutiny and rejection by private citizens and public officials. What is “final” at one stage of our political development may be reopened at some later date, leading to revisions, fresh interpretations, and reversals of Court doctrines.
If the Court does not have the final word on the Constitution, what then explains the persistence of judicial supremacy? Perhaps the desire for finality is simply human nature. “There is a magnetic attraction to the notion of an ultimate constitutional interpreter,” wrote Walter Murphy, “just as there is a magnetic pull to the idea of some passkey to constitutional interpretation that will, if properly turned, always open the door to truth, justice, and the American way.”4 However, finality is not our only value. Like the patient who gets bad news from the doctor, we like to have a second opinion. We want choices, not dead-ends, and need to participate in our own political destiny, not simply be told the result.
Another explanation is that judicial supremacy is fueled by those who benefit from it. Naturally, the Supreme Court is the principal beneficiary of the myth of judicial supremacy. Lacking the powers of purse and sword, the Court’s status is linked to public acceptance of its decisions. But the judicial supremacy myth benefits many others. The power and prestige of the Justice Department is often tied to the judicial supremacy doctrine. The Department’s power to represent the “United States” in court is necessarily joined to the Supreme Court’s power to bind the nation through its pronouncements.
For similar reasons, members of the Senate Judiciary Committee often endorse judicial supremacy. The Committee’s power over judicial nominations is directly tied to the power of the Court. The President and members of Congress seek cover in Supreme Court rulings. When enacting item-veto legislation, some members of Congress hoped the Court would protect legislative prerogatives and “save this Congress from itself.”5 Other members embraced an expedited Supreme Court review provision so that Congress could avoid having to determine the constitutionality of this politically popular bill. For their part, Presidents have long pointed to the Supreme Court as a way of ducking politically controversial issues. John F. Kennedy and Dwight Eisenhower accepted the Court’s power to authoritatively settle constitutional disputes.6 Presidents also support judicial supremacy when courts sustain their favored policies.7
Even state and local officials see judicial supremacy at the national level as a useful rallying cry. Late 1960s voting rights decisions upholding congressional reforms gave cover to Southern officials willing to comply with the new policy but unwilling to take responsibility for it.8 Many state officials hid behind the Supreme Court’s decision in Roe. When Idaho’s pro-life governor Cecil Andrus staved off a threatened boycott of Idaho potatoes by vetoing anti-abortion restrictions, he observed that “there is not the remotest chance of this legislation’s being found constitutional by the Supreme Court.”9
Judicial supremacy also benefits law professors and journalists covering the Supreme Court. For law professors, there are strong incentives to see the Supreme Court as a somewhat closed system (speaking the last word on constitutional issues). This classroom model supports a position that matters the most: the teaching and practice of constitutional doctrines and canons. Perhaps for this reason, law professors assign casebooks filled with Supreme Court decisions and academic commentary about those decisions—so that the language of lawyers becomes the language of constitutional law.
In contrast, were the decisions of the Supreme Court seen as part of a broader sociopolitical mosaic, lawyer training and, with it, law professor expertise would matter less. For almost identical reasons, Supreme Court journalists do not want Court decisions to be seen as simply one volley in an ongoing dialogue over the Constitution’s meaning. Like law professors, the power of Supreme Court journalists is tied to the power of the Court. In plain terms, the Supreme Court “beat” is only as important as the Court.
Judicial supremacy seems destined to survive, but only because elected officials find it convenient and only because it is a half-truth. Notwithstanding their continuing adherence to Court-centered casebooks, contemporary academics at times dismiss the Supreme Court as the leading (let alone ultimate) interpreter of the Constitution. Nevertheless, judicial supremacy still has its academic defenders. Writing in the Harvard Law Review in 1997, Larry Alexander and Frederick Schauer spoke of judicial supremacy as a necessary way of settling legal disputes, assuring doctrinal coherence, and promoting political stability.10 As we will soon detail, we disagree—fundamentally—on each point. Nothing in America’s experience supports the notion that concentrating power in the Court would settle political controversies, yield doctrine coherence, or promote political stability. Quite the contrary.
Placing complete interpretive authority in the Court would create political instability and undermine the fragile foundation that supports and sustains judicial power. Instead of suggesting that the judiciary can settle in any decisive way such contentious issues as abortion, affirmative action, federalism, privacy, race districting, and religious freedom, the record of the last two centuries points to a more modest and circumscribed judicial role. If we were ever to grant the Court the last word on the Constitution’s meaning, judicial exclusivity would marginalize the Constitution. For example, elected officials might ignore the Constitution, placing their policy-driven judgments ahead of the Court’s constitutional judgments. Also, many of the issues that now go to the courts, with the understanding that it will be part of a national dialogue, would be kept within the elected branches, perhaps by stripping courts of jurisdiction. In effect, we would have two constitutions: one decided by the Court and the other by elected officials.
Still, we can expect to continue to hear different versions of judicial supremacy, such as the belief that a Supreme Court ruling can be reversed only through constitutional amendment or if the Court changes its mind. In a book published in 2012, Jeffrey Toobin stated that a Supreme Court decision “interpreting the Constitution can be overturned only by a new decision or by a constitutional amendment.”11 Tom Goldstein, who frequently argues cases before the Supreme Court, stated on June 20, 2013, that when the Court “interprets the Constitution, that is the final word. The President and Congress can’t overturn its decision. The only option is to amend the Constitution which is basically impossible.”12 There are many other options.
Preserving the Constitution
Alexander and Schauer have asked whether the Constitution can be preserved and honored without “a final interpretive authority for choosing among competing [constitutional] interpretations?”13 For its modern day defenders, judicial supremacy is heralded as the only way to protect “a single written constitution” from “shifting political fortunes.”14 This conclusion, however, is not suggested in the text or structure of the Constitution, the framers’ intent, historical development, or even Supreme Court declarations of its status as interpreter of the Constitution.15 Instead, the overriding value promoted by the framers was a system of checks and balances, with each branch asserting its own powers and protecting its own prerogatives. Moreover, “shifting political fortunes” obviously affect the judiciary as much as they do the elected branches. After all, courts are a part of government and its membership changes just like the executive and legislative branches. Its members are nominated and confirmed by elected officials.
As we have already detailed, the Constitution’s text, its original intent, and intervening practice support a limited form of judicial review. Indeed, at the time of Marbury, several Justices wondered whether the power of judicial review would reach to congressional and presidential actions. Starting with George Washington (whose first veto was on constitutional grounds), Presidents have maintained that Supreme Court rulings would extend only to “such influence as the force of their reasoning may deserve.”16 Prominent examples of independent constitutional judgments outside the judiciary include Thomas Jefferson’s pardoning every person convicted under the Alien and Sedition Acts and Abraham Lincoln’s repudiation of Dred Scott. A contemporary example is Barack Obama’s rebuke of Citizens United while the Justices sat before him at the State of the Union Message.
For its part, Congress has launched numerous challenges to the Court. In response to Dred Scott, Congress passed a bill in 1862 prohibiting slavery in the territories. Disagreeing with the Court’s 1918 ruling that the commerce power could not be used to regulate child labor, Congress two decades later successfully based child-labor legislation on the commerce clause. The public accommodations protections contained in the 1964 Civil Rights Act collided with the Civil Rights Cases of 1883, which the Court had never repudiated. More recently, lawmakers have challenged Court rulings on abortion, busing, flag burning, religious freedom, voting rights, the independent counsel, and the legislative veto.
Settling Transcendent Values
What about the central question that animates the normative inquiry by Alexander and Schauer: “What … is law for?”17 Even assuming that law’s principal function is to settle matters authoritatively and promote stability, the argument for judicial supremacy falls flat. Without the powers of the purse and sword, the Court acknowledges that it “must take care to speak and act in ways that allow people to accept its decisions.”18 Rather than advance its institutional self-interest through claims of judicial supremacy, the Court understands its circumscribed role in government.
On war powers, for example, the Court typically steers clear of presidential invocations of inherent “Commander in Chief” powers. Because the contemporary Congress hardly ever checks the President’s military commitments, preferring instead to dutifully follow his initiatives, Supreme Court Justices and other federal court judges are unwilling to fill the void left open by lawmakers. Without the cover provided by congressional assertiveness, courts are unwilling to risk either elected branch reprisals or presidential noncompliance with their orders. Instead, contemporary courts generally announce they lack jurisdiction to resolve legal challenges to presidential wars. Even when the Court rules against the President (as it did with the George W. Bush enemy combatant policies), it moves cautiously so that the issue largely remains in the hands of elected officials. In contrast, from 1800 to 1952, courts regularly took and decided war powers cases.19
The history of the Supreme Court has been a search for various techniques and methods that will permit the judiciary to limit and constrain its own power. Justices understand, either by instinct or experience, that the hazards are great when the Court attempts to settle political, social, and economic matters best left to the elected branches. Despite occasional utterances from the Court that it is the “ultimate interpreter,” Justices by necessity adhere to a philosophy that is much more modest, circumspect, and prudent. Court decisions, at best, momentarily resolve a dispute forced into court.
Marbury v. Madison nicely illustrates how political challenges to the Court’s interpretive authority and vaunted claims of judicial supremacy are linked. When Marbury was being considered, the Supreme Court and its Chief Justice, John Marshall, were under attack. Court foe Thomas Jefferson had just been elected President, and, at his urging, Secretary of State James Madison openly challenged the Court’s authority to subject executive officers to court orders. Unwilling to engage in a head-to-head confrontation with the Jeffersonians, the Court’s supposed war cry that “[i]t is emphatically the province and duty of the judicial department to say what the law is” is window dressing for the Court’s ultimate decision to duck the dispute on jurisdictional grounds.20
On those few occasions when the Court insists it has the “last word” in interpreting the Constitution, such announcements make sense only within their political context. Cooper v. Aaron (1957) illustrates this practice. The Court’s claim that federal court constitutional interpretations are “supreme” was made in the face of massive Southern resistance to Brown v. Board of Education, including Arkansas’ enlistment of the national guard to deny black schoolchildren access to Little Rock’s Central High School. Backed to the wall, the Court decided to emphasize its authority, perhaps recalling that wishy-washy opinions (like Brown II) can invite noncompliance. It also understood that its decision would only have authority if supported by the elected branches of the federal government.
Planned Parenthood v. Casey similarly underscores the Court’s belief that “a surrender to political pressure” would result in “profound and unnecessary damage” to the Court.21 Although refusing to bend to the stated desires of the Presidents who appointed them and overrule Roe “under fire,” the Court (by jettisoning the trimester standard) conceded that the nation had not accepted Roe.
The threat of resistance to the Court’s orders likewise animated invocations of judicial supremacy in other cases, such as the reapportionment case of Baker v. Carr. At oral argument, counsel for Tennessee suggested that state officials might resist court-ordered reapportionment. The same lesson applies to the Court’s declaration of judicial supremacy in Powell v. McCormack, which involved the refusal of the House of Representatives to seat Congressman Adam Clayton Powell. The House signaled to the Court that it might resist a judicial order requiring it to seat Powell.22 In the Watergate Tapes Case, Nixon’s attorney, James St. Clair, equivocated on Nixon’s willingness to accept the Court’s judgment on executive privilege as binding on the President.23 This put pressure on the Court to craft a unanimous decision (which it did), and made congressional support for the decision essential. Voting across party lines, the House Judiciary Committee voted for impeachment.
The Supreme Court’s practice of declaring itself the final word on the Constitution’s meaning when it feels especially challenged by the other branches is hardly surprising. Invariably, the Court takes a bold stand because it fears that the political order will ignore its command. With respect to Cooper, although Arkansas Governor Faubus’s repudiation of Brown scored points with in-state voters, national public opinion favored President Eisenhower’s decision to send federal troops into Little Rock.24 The reapportionment case of Baker v. Carr risked ill will with state officials in order to reach an outcome popular in the national political arena. Of 63 leading metropolitan daily newspapers, 38 favored the Court’s decision and 10 opposed it, with the remainder neutral or confused.25 Public opinion strongly supported the Court’s authority to compel President Nixon to release the Watergate tapes.26 The “undue burden” standard announced in Casey closely matched public opinion.27
Lacking the power to appropriate funds or command the military, the Court understands it must act in a way that wins public acceptance.28 The Court realizes that its role as interpreter of the Constitution depends on public support and understanding of its decisions.29 Court decisions cannot be divorced from a case’s (sometimes explosive) social and political setting.
Promoting Political Stability
If Supreme Court decisions were viewed as final and binding unless the Court changed its mind, democratic government would largely ignore those rulings and insist on their policy preferences. “Final” court decisions would hang in the air, isolated from public policy. This marginalization of the Constitution (and the Court) is directly at odds with the settlement function of law. Stability, instead, can only be achieved through a give-and-take process involving all of government as well as the people. Justice Brandeis observed that “the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.”30
In other words, what is constitutional or unconstitutional must be left for us to explore, ponder, and come to terms with. Through this process of trial and error, the Court is able to recalibrate its decisions—taking social and political forces into account and, where appropriate, updating or reversing its decisions. In an interview in 1982, Justice Blackmun put it this way: “It may prove to be well in the long run that people do get disturbed and concerned and interested in what the Court does. I think on balance that this is a good thing for the country, because the Supreme Court of the United States belongs to the country.”31 More to the point, the Constitution belongs to the country. For Supreme Court interpretations of the Constitution to have meaning, elected officials and the public must accept those rulings or, at least, accept the Court’s power to make such rulings.
This process does not mean the Court should simply bend to popular opinion. The Court, however, does not promote political stability by issuing opinions that do little but trigger disobedience. Political stability, instead, can only be achieved when the Court’s authority to bind the nation through its constitutional interpretations is generally accepted. For this reason, the Court must engage in a politically sensitive balancing act. To preserve its power, it cannot demand that all of its decisions (even those the public considers outdated) be treated as final and definitive; it must sometimes reverse itself to conform to social and political forces. Indeed, recognizing the link between its authority and public acceptance, the Court is seldom out of step with prevailing mores.32 Consider the collapse of the Lochner era under the weight of changing social conditions, economic structures, and hostile public reactions. Following Roosevelt’s 1936 election victory in all but two states, the Court, embarrassed by public attacks against the Justices, announced several decisions upholding New Deal programs. In explaining this transformation, Justice Owen Roberts recognized the extraordinary importance of public opinion in undoing the Lochner era: “Looking back, it is difficult to see how the Court could have resisted the popular urge for uniform standards throughout the country—for what in effect was a unified economy.”33
Social and political forces played a defining role in the Court’s reconsideration of decisions on sterilization and the eugenics movement,34 state mandated flag salutes,35 the Roe trimester standard,36 the death penalty,37 states’ rights,38 and other issues.39 It did not matter that some of these decisions commanded an impressive majority of 8 to 1.40 Without popular support, those decisions settled nothing. Justice Robert Jackson instructed us that “[t]he practical play of the forces of politics is such that judicial power has often delayed but never permanently defeated the persistent will of a substantial majority.”41 For a Court that wants to maximize its power and legitimacy, taking social and political forces into account is an act of necessity and institutional prudence, not cowardice. When the Court gives short shrift to public values or concerns, its decision-making is unworkable and destabilizing.