The Role of the Supreme Court in Arendt’s
MARCO GOLDONI AND CHRIS MCCORKINDALE
IT IS SLIGHTLY curious that despite her clear interest in questions of law and legal process (see, for example, her analysis of Eichmann’s trial in Jerusalem, her reflections on the Supreme Court’s rulings on racial segregation, her analysis of the ‘juridical person’ in man, her formulation of the right to have rights), lawyers themselves have spent almost as little time on Arendt’s work as Arendt scholars have on her legal thought. Then again, perhaps this should not be surprising. Arendt, after all, was noted for her neglect of ‘normal’ politics and a corresponding fascination with the ‘extraordinary’.1 And yet, given that her optimism for mankind in the Origins of Totalitarianism was based on the hope of founding new legal structures, given too that her pessimism in On Revolution was based on the failure of America’s Founding Fathers to institutionalise the revolutionary spirit by which that republic was made, it would seem that a comprehensive account of Arendt’s political thought is necessarily incomplete absent any dedicated analysis of those institutions within which she believed that the spirit of (political) action could endure.
For its constitutional implications, as well as for the way it captures the ambivalent treatment given by Arendt to law more generally, in this essay we focus on just one such institution—the US Supreme Court—and the ambiguous role attributed to it, and to the function of judicial review in particular, found scattered throughout her writing. We begin to explore this question from chapter five of On Revolution, where both the potential and the limits of the Supreme Court as a republican institution emerge. To date, and to our knowledge, only two papers seriously consider Arendt’s views on the possibility of politics being played out in the court room; papers which offer polar opposite accounts of her faith in the judicial branch. The first is Jan Klabbers’ 2007 piece, ‘Possible Islands of Predictability: The Legal Thought of Hannah Arendt’.2 Here Klabbers says of Arendt:
She would have been … sympathetic to the idea of judicial review, provided that the idea remain limited to testing whether legislation and administrative action had … come about in the right manner, and provided there were a clear constitutional mandate. She said kind words about the US Supreme Court, which while powerless, exercised great authority, and did so in a purely legal function.3
Klabbers, then, interprets from Arendt a somewhat narrow role for judicial review, something akin to John Hart Ely’s procedural approach.4 Taking from her work the warning that ‘getting judges to solve political debates or fix political outcomes under the heading of judicial review would run into serious difficulties’,5 Klabbers proceeds from there to build his own argument against juridification on the international plane.
The second paper is Andrew Arato and Jean Cohen’s 2009 article, ‘Banishing the Sovereign? Internal and External Sovereignty in Arendt’.6 In a marked contrast with Klabbers’ interpretation, here the authors see in Arendt’s work a far more expansive scope for judicial review. Indeed, they go as far to say that Arendt embraced ‘a constitution of judges’, putting ‘a glowing senatorial aura on Wilson’s rather negative depiction of the Court as “a constituent assembly in permanent session”’.7 Thus Cohen and Arato find in On Revolution a Supreme Court ‘capable of usurping sovereignty’.8 This interpretation is not entirely implausible, and would place Arendt within a tradition of American legal scholars for whom a republican revival in American constitutional thought has meant, above all, placing the US Supreme Court to the front and centre of constitutional design.9 Indeed, and as we shall see, in On Revolution Arendt certainly seemed to look upon the Supreme Court with something of the reverence depicted in Cohen and Arato’s analysis. By looking beyond On Revolution, however, in particular to two essays, ‘Reflections on Little Rock’ and ‘Civil Disobedience’, this essay sets out to offer a more nuanced account of the authority and power of the Supreme Court which is to be found in Arendt’s work; a position which sits somewhere between that of Klabbers and that of Cohen and Arato. In the first place, we shall show that Arendt was much more ambivalent in bestowing authority upon the Supreme Court than the latter suggest, finding in that institution not the dynamism and vitality of the founding moment, but rather (and merely) the conservative interpretation of the written Constitution. Contra Arato and Cohen, secondly we trace the steps which led Arendt, finally and explicitly, to reject ‘a constitution of judges’.
In her (in)famous reconstruction of that which she believed to have been the most successful among modern revolutions, the American Revolution, Arendt traced the roots of its success to a distinction drawn by the Founding Fathers between the seat of power and the source of law. The Founding Fathers, she said, ‘were never tempted to derive law and power from the same origin. The seat of power to them was the people, but the source of law was to become the Constitution, a written document, an endurable objective thing’.10 It was ‘in-between’ these different sources that Arendt discovered the novelty of the Supreme Court, which stood to protect that object from the ebb and flow of power (always moving, always changing, always subjective) embodied in the legislative and executive branches. For she, the Court—together with the institution of judicial review—was directly linked to the preservation of that object, the Constitution,
which, to be sure, one could approach from many different angles and upon which one could impose many different interpretations, which one could change and amend in accordance with circumstances, but which nevertheless was never a subjective state of mind, like the will.11
It is here, in Arendt’s view of the Constitution as a lasting object, that one can begin to understand the role which she attributed to the Supreme Court. What she saw as characteristic of this institution was its being the seat of authority, and neither the locus of power (the people) nor the source of law (the written Constitution). In order to understand the nature and the scope of the Supreme Court (at least as Arendt saw it), allow us to consider this assumption a little more carefully.
For Arendt, the failure of the French Revolution (beyond the troublesome social question) could be traced precisely to the attempt to derive both law and power from the same source, through the deification of the people. There, the contradiction between the principle of political legitimacy (the national will) and the aim of institutions (to create the conditions for political stability) was brought into a sharp focus. Because the will is by definition the most transient among the human faculties, and therefore the least able to provide for a solid (and this is to say, permanent) institutional ground, Arendt saw that any conflation of power and law—of the subjective will and the objective constitution—was bound to fail.12
For Arendt, a stable and durable political community could only be secured through an institution capable of mediating between these two distinct concepts, the power of the new beginning (the founding moment) and the stability of the constitution (that which was founded). ‘If,’ she said, stating the paradox which faced the men of the revolution, ‘foundation was the aim and the end of revolution, then the revolutionary spirit,’ which was to say, the spirit of action, ‘was not merely the spirit of beginning something new but of starting something permanent and enduring … From which it unfortunately seems to follow that nothing threatens the very achievements of revolution more dangerously and more acutely than the spirit which has brought them about’.13 The Founding Fathers’ ‘novel and unique’14 solution to this ‘unsolvable’15 problem was to recover for the modern age the Roman concept of authority.
It was characteristic of Arendt to give idiosyncratic (and at times hotly-contested) meaning to commonplace terms of political theory. In this instance, she distinguished ‘authority’ from ‘violence’ (defined by coercion over men) and ‘power’ (defined by persuasion between men). The ‘hallmark [of authority],’ as she saw it, ‘is unquestioning recognition by those who are asked to obey; neither coercion nor persuasion is needed’.16 To be sure, Arendt was never clear as to the nature of this act of faith: that is to say, just why it was that one institution could or should attract the unquestioning support of the people. She did begin to make a move in this direction, however, by exploring the etymology of the word, which she traced from augere, to augment. Here she left us the clue that the nature of authority derives from the continued augmentation of the republic’s founding principles.17
In Rome, those who were recognised as having authority ( patres) constituted the Senate. Their duty was to preserve the founding principles of the city by ensuring, through their deliberation and advice, that present and future laws remained faithful to them.18 The past, in this sense, became a guide—a banister—to the coming generations; a legacy bestowed upon them by the Senators. Thus, no generation was an island: each generation—past, present and future—was bound by a common world, both spatially and temporally:
The common world is what we enter when we are born and what we leave behind when we die. It transcends our life-span into past and future alike; it was there before we came and will outlast our brief sojourn in it. It is what we have in common not only with those who live with us, but also with those who were here before and with those who will come after us.19
How Arendt conceived of this temporal dimension is both counter-intuitive and yet at the same time essential to understanding her conception of authority. It is natural to think of growth, and therefore of augmentation, as an activity which is exclusively orientated to the future, distancing us from the past. For Arendt however, the opposite was true. Thus, she said, for the Romans:
Old age, as distinguished from mere adulthood … contain[ed] the very climax of human life; not so much because of accumulated wisdom and experience as because the old man had grown closer to the ancestors and the past. Contrary to our concept of growth, where one grows into the future, the Romans felt that growth was directed toward the past.20
The Senate, then, derived its authority from the fiction that in it were permanently recreated the founding fathers of Rome themselves:
Through the Roman Senators, the founders of the city of Rome were present, and with them the spirit of foundation was present, the beginning, the principium and principle, of those res gestae which from then on formed the history of the people of Rome.21
It was not the founding moment, but its (mythical) reincarnation in a political institution which tied the changes of the present to the vitality of beginning, to the vibrancy of the constitutive act of foundation; which tied, in other words, future generations to their constitutional origins.
In America, however, the seat of authority was not a political institution but a legal one. Judicial control of executive and legislative power drew its authority not from the political act of foundation, but rather from that which was founded: from the written document of the Constitution. As such, the role of the Court was neither to deliberate nor to advise, but rather to interpret that document.22 If the Roman Senate sat as the (fictional) personification and institutionalisation of a constituent power, the very embodiment of action, the Court sat as the (fictional) personification of the Constitution itself. Accordingly, for the Romans, the
uninterrupted continuity of [constitutional] augmentation and its inherent authority could come about only through tradition, that is, through the handing down, through an unbroken line of successors, of the principle established in the beginning. To stay in this unbroken line of successors meant in Rome to be in authority…23
Corresponding to the meaning—if not the practice—of authority, in America to act according to the Constitution, to act intra vires, was to be in authority, the ongoing interpretation and reinterpretation of legitimate vires being the role—the only role—reserved for the Supreme Court.24 If this seems a rather banal position, we shall come to see its significance when, in sections III. and IV., we turn our attention to the criticisms which Arendt levelled at the Court in two specific instances. Before we do so, however, we must delve deeper into the nature of the Court and its authority.
Taking Federalist number 78 as the basis for the claim that power and authority were kept separate by the Founding Fathers,25 Arendt emphasised two features of the Supreme Court which bound it to the latter. ‘Institutionally,’ she said, ‘it is [i] lack of power, combined with [ii] permanence of office, which signals that the true seat of authority in the American Republic is the Supreme Court’.26 Allow us, then, to consider each of these features in turn.
The first—lack of power—speaks to the difficulty of producing in a constitutional court those matters which Arendt saw as being the two conditions of power: a space of appearance, and a common world.27 To constitute a space of appearance, an institution should allow a plurality to appear, to speak, to act and to be preserved qua plurality. Typically, a court does not constitute such a space, and this for intrinsic reasons. First, in most actions before the court there stand only two actors, who face each other in an adversarial, zero-sum game with no (or limited) space for resolution between the parties. Secondly, in contemporary practice those two parties are, more often than not, constituted by the government on the one side and another (legal or physical) person on the other.28 Thirdly, restrictive rules on standing mean that the latter must (generally) have suffered some harm in order to bring a claim against the former; third party and public interest standing, where the plaintiff represents a broader plurality, has actively been discouraged by the court: ‘judicial power,’ as the traditional reading has it, ‘exists only to redress or otherwise to protect against injury to the complaining party’.29 Thus, putting the three together, judicial review is often painted as a forum for the expression of what Berlin has famously called ‘negative freedom’30: the protection of individual, private rights vis-à-vis the weight of the (presumably interfering) federal government.31 For Arendt, freedom meant something more than this. Hers was an active and unashamedly demanding freedom: it meant, she said, ‘the “right to be a participator in government”, or it meant nothing’.32
Because of its powerlessness, political freedom—at least as Arendt saw it here—could not be exercised by a constitutional court. Thus, in a brief passage of What is Authority?