That Eminent Tribunal: Judicial Supremacy and the Constitution

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The role of the United States Supreme Court has been deeply controversial throughout American history. Should the Court undertake the task of guarding a wide variety of controversial and often unenumerated rights? Or should it confine itself to enforcing specific constitutional provisions, leaving other issues (even those of rights) to the democratic process?

That Eminent Tribunal brings together a distinguished group of legal scholars and political scientists who argue that the Court's power has exceeded its appropriate bounds, and that sound republican principles require greater limits on that power. They reach this conclusion by an interesting variety of paths, and despite varied political convictions.

Some of the essays debate the explicit claims to constitutional authority laid out by the Supreme Court itself in Planned Parenthood v. Casey and similar cases, and others focus on the defenses of judicial authority found commonly in legal scholarship (e.g., the allegedly superior moral reasoning of judges, or judges' supposed track record of superior political decision making). The authors find these arguments wanting and contend that the principles of republicanism and the contemporary form of judicial review exercised by the Supreme Court are fundamentally incompatible.

The contributors include Hadley Arkes, Gerard V. Bradley, George Liebmann, Michael McConnell, Robert F. Nagel, Jack Wade Nowlin, Steven D. Smith, Jeremy Waldron, Keith E. Whittington, Christopher Wolfe, and Michael P. Zuckert.

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What People Are Saying

This is a very impressive collection of essays by a group of scholars who are at, or entering, the peak of their careers—and stars and superstars they are. From a variety of perspectives, but with a shared spirit, they analyze the way the contemporary Supreme Court understands judicial power and its role in the American polity. Rather than harness the courts, they seek to breed a better sort of justice, or less metaphorically, to develop a concept of judicial power and of the place of constitutional law within the polity that will in the long run result in the repair of the wrongs they discover.
James R. Stoner, Jr., Louisiana State University, author of "Common-Law Liberty: Rethinking American Constitutionalism"
This is one of the few academic books that leave the reader asking for more rather than less. It is by a group of leading scholars who lament the judicial activism of federal courts over the past half-century, and particularly since Roe v. Wade. The variety and trenchancy of its arguments make it a significant contribution to the scholarly, and popular, debate over judicial power.
Charles R. Kesler, Claremont Institute, Editor of the "Claremont Review of Books"
This is a very impressive collection of essays by a group of scholars who are at, or entering, the peak of their careers--and stars and superstars they are. From a variety of perspectives, but with a shared spirit, they analyze the way the contemporary Supreme Court understands judicial power and its role in the American polity. Rather than harness the courts, they seek to breed a better sort of justice, or less metaphorically, to develop a concept of judicial power and of the place of constitutional law within the polity that will in the long run result in the repair of the wrongs they discover.
James R. Stoner, Jr., Louisiana State University, author of "Common-Law Liberty: Rethinking American Constitutionalism"
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Product Details

  • ISBN-13: 9780691116686
  • Publisher: Princeton University Press
  • Publication date: 8/16/2004
  • Series: New Forum Books Series
  • Edition description: New Edition
  • Pages: 256
  • Product dimensions: 6.10 (w) x 9.20 (h) x 0.70 (d)

Meet the Author

Christopher Wolfe is Professor of Political Science at Marquette University. He is the author of "How to Interpret the Constitution, Judicial Activism", and "The Rise of Modern Judicial Review".
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Read an Excerpt

That Eminent Tribunal

Judicial Supremacy and the Constitution

Princeton University Press

Copyright © 2004 Princeton University Press
All right reserved.

ISBN: 978-0-691-11668-6



At the same time the candid citizen must confess that if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal. -Abraham Lincoln, First Inaugural Address

IN THE PAST generation, an abundance of scholarship has clearly described the profound transformation in the role of the Supreme Court (and the judiciary in general) in American public life. While the Court has always played a significant role in our political system, it has not always wielded the broad policymaking power it regularly exercises today.

The scope and character of judicial power today is fundamentally inconsistent with the separation of powers embodied by the American founders in our Constitution. Current judicial excesses are not merely an aberration from our ordinary political arrangements, but raise the specter of establishing a new form of government. Even many of those who areopposed to judicial usurpation today are under the impression that it is merely a particular group of unusually "extreme" judges that account for this phenomenon. They fail to understand that extreme notions of judicial power have become entrenched in our legal and political system. And, as Lincoln argued, in regard to the Dred Scott case-with all the respect properly owed to the judiciary as a coordinate branch of government-to treat the Supreme Court as the final or ultimate authority on constitutional issues is to resign our self-government into the hands of "that eminent tribunal."

At times in the past thirty years Court watchers have predicted a fundamental shift in the Court, a retrenchment of judicial power, due largely to the appointments by Republican presidents who have stated their desire to appoint judges who will interpret the law rather than make it. But, typically, those terms in which the Burger Court or Rehnquist Court handed down decisions that seemed to portend a withdrawal from judicial pretensions have been followed by other terms in which such pretensions have been reasserted. The current composition of the Court (and, even more so, the lower courts) gives little hope for fundamental change.

In particular, there is something quite distinctive about the Court's continuing injection of its power into so-called culture war issues (symbolized by cases such as Roe v. Wade and Planned Parenthood v. Casey) that have become so prominent a part of American political and social life since the 1960s-matters regarding life and death, family and sexuality, church and state. According to many of its critics, the Court's "privacy" decisions (regarding, for example, abortion and homosexuality) have, in the name of individual autonomy, undermined the moral framework of society by depriving state and local governments of their legitimate power to provide social supports for traditional morality. Similarly, in their view, the Court has barred state and federal efforts to provide for a reasonable accommodation of religion, pursuing instead a conception of church-state relations that radically privatizes religion and creates a "naked public square." Even liberals who approve of many of the policy outcomes that have been generated by the courts in these and other areas sometimes question the constitutional and moral legitimacy of achieving these outcomes by judicial fiat.

The debate is not merely about how the Supreme Court should use its authority to resolve authoritatively our great constitutional questions, and whether it has used this power well or ill. The question is whether the Supreme Court has such authority, especially in light of the fact that the Constitution for at least the first century was generally understood to give no one branch such final authority. Phrased more positively, the legislative and executive branches and state governments have legitimate constitutional authority to participate in the resolution of our great constitutional questions, rather than simply waiting to receive answers from the Supreme Court. In this respect, it could be said that the central question about judicial power today is how to limit it effectively in order to reestablish a full measure of republican government in the United States.

It should not be surprising that this will be no easy task. First, elite intellectual opinion is strongly behind the courts-as one should expect it to be, given that courts are often an effective vehicle for giving elite intellectual opinions the political power that they cannot win through elections. Second, the legal profession as a whole has been educated by a corps of legal intellectuals and scholars, the vast majority of whom are committed to modern notions of judicial power that are quite incompatible with the traditional American separation of powers. And, third, the "new class" professionals-such as journalists, those working in the entertainment media, and writers and artists-whose power and influence turn on the ability to manipulate information, and who typically tend to support liberal intellectuals, also tend to weigh in against any efforts to restore a proper balance between judges and the political branches.

Even recent "conservative" judicial activism in some areas of the law has led to only limited reconsideration of the scope of judicial power. Certainly we do not hear many scholars calling for a wholesale reconsideration of the Court's liberal precedents from the last generation or two. More often, there is criticism of particular decisions, and, in some cases, a call to recognize a broader power in other branches to qualify or limit what the recent, more conservative Court has done, in order to undermine those decisions (but usually in ways that protect the earlier and more academically popular fruits of judicial activism). If this qualified reconsideration of judicial supremacy is welcome, it does not go nearly far enough.

This book, drawing on scholars with divergent political views, lays out the problem of judicial imperialism today-what it is, what its sources are, some of the key arguments made on its behalf, and the appropriate responses to those contentions.

Gerard V. Bradley opens the volume with an analysis of the claims made by defenders of the Court, and by the Court itself, in the landmark joint opinion in Planned Parenthood v. Casey. He describes the way in which the Court has identified its own authority with that of the Constitution, after having detached the Constitution from any concrete content and arrogated to itself the power of defining its alleged majestic generalities. The Court effectively tells Americans, "We will be your Court and you will be our people." To those who object to this arrogation of power, there is a twofold response. The power of the Court to strike down laws on the basis of something other than the Constitution is said to have been popularly ratified (in some unspecified manner), but popular opposition to controversial Court decisions is downplayed on the basis of the Court's superiority to the people in elaborating our national principles: "the Court has constructed around its rulings a seemingly impregnable rhetorical fortress, pouring the hot oil of principle on the heads of rabble ascending the walls, cutting off the legs of highbrow critics with the whipsaw of popular ratification." But, then, how is it possible to know what the law is, until the "winners" have written their histories?

Robert F. Nagel locates the source of Casey's claims for the Court in the fear that the nation lacks a sufficient ground for unity without judicial supremacy. What explains Casey's concern about a "jurisprudence of doubt" is something deeper than precedent: "the authoritativeness and supremacy of the judiciary's interpretive function, not respect for precedent, is the operative concern." The Court is the vehicle by which the nation can "see itself through its constitutional ideals," and the capacity for this kind of collective self-perception is nothing less than the capacity for a national identity. What is at issue is not just the operational integrity of our constitutional system but the existence of the political culture upon which that system rests. This fear of disintegration appears regularly among scholars and Court watchers, and has been particularly salient in cases involving race, such as Cooper v. Aaron, and the culture war, such as Casey. The shadow argument of Casey "is that the Court's interpretation must be accepted, not because it is right, but because dissensus on an issue deemed crucial and unresolvable will tear the country apart." But there is a terrible irony in all this: our devotion to judicial supremacy, exemplified in the centralized imposition of questionable policy by Roe v. Wade, may stimulate further opposition that makes nationhood seem more precarious than it is, thus inducing ever more nervous reliance on national judicial power.

Michael Zuckert takes another swing at Casey, arguing for a more limited understanding of it. Despite the apparent magnitude of its surface claims (for example, in its famous "mystery passage"), Casey should be understood more narrowly-as an example not of "Nietzschean autonomy" but of "hermeneutic Socratism"-not radical autonomy on fundamental issues, but a sort of openness to competing answers. But in the end hermeneutic Socratism is inadequate: first, as a judicial and political action, it failed in its goal of eliminating a "jurisprudence of doubt," since it only stimulated further controversy; second, it is inadequate as a general constitutional theory, because it is has too open-ended a theory of rights, and too little appreciation for the role of government in protecting rights; and third, it is ill equipped to resolve the abortion controversy, providing inadequate resources to address the two fundamental questions that are decisive of the issue: whether the rights of the fetus counterbalance the woman's generalized liberty right, and whether there are other considerations of the public good that counterbalance the woman's generalized liberty right.

Hadley Arkes contends that judges seem willing to snatch questions such as marriage, sexuality, nature, life, death, and the very definition of a human being out of the political arena and reserve it to their own hands, "removing from the arena of public deliberation questions that were once thought to be at the center of our public lives." Their holdings on abortion-especially recent lower-court decisions on prohibitions of partial-birth abortion, at a point where the act is indistinguishable from infanticide-have cast doubt on human beings' natural rights, making such questions a matter for political authority. We are no longer as certain as we used to be about what constitutes "nature" and human beings, or perhaps (even if we think we understand what a human being is) "we think that our judgment here may be a matter of opinion or convention-or even a certain tribal preference for our own species-and so we are content to leave to the decision of the community, or the political process, the authority to determine just who is a human being." That is to say, we assume that there is no intrinsic meaning or dignity that attaches to the notion of a human being: this judgment is a matter dependent wholly on the positive law. Judges are thereby at war with jurisprudence itself, for the law is no longer committed, as part of its central mission, to the protection of human life, it being no longer clear that there is a body of natural rights that forms the grounds of our rights, and our jurisprudence. This new jurisprudence can therefore be characterized as "antijural jurisprudence," since it detaches itself from the premises necessary to the notion of lawfulness, leaving us with the forms but without the substance of law.

George W. Liebmann discusses the effect of judicial interference on subordinate and mediating institutions, and what should be done about it. He describes the deleterious effect of judicial interference in state and local governments, various professions (law, medicine, social work, schools, the mass media), economic units (especially by perverse statutory construction), and the family (with the extolling of the individual rights of family members above interests of family solidarity). These unfortunate judicial interventions have been tolerated because of the fixation on the economic by both the Right and the Left, and have been hastened by their association with the pursuit of racial equality (aspects of which have only helped to make slum inhabitants wards of the state, due to a fostering of extreme individualism). Government should start by obeying the admonition to "do no harm." Its contribution to equality should come in the form of a fair tax policy applied to income above subsistence. Other efforts of egalitarianism generally end in tyranny and partiality. "The road away from our present discontents," he argues, "is found not in invention of new 'rights' but in respect for what was once thought to be a distinctive American value, what Justice Black called 'the right of each man to participate in the self government of his society.'" Repudiation of various judicial doctrines is necessary to help prevent the United States from falling into the error of France described by Tocqueville: a prejudice against local discretion (characteristic of both the Left and the Right, the Jacobins and Economists) leading to a capricious and arbitrary central administration that undermined respect for law.

Steven D. Smith inquires into the capacity of the legal academy to shape the law. The first category of the more obvious ways of influencing the Supreme Court-for example, scholarly publications and supplying "the courts with law clerks freshly trained to see the law the way the professor sees it"-are very limited, Smith believes. Even the capacity to bestow praise and blame on judges, which is likely to have a greater impact, at least on some judges, is still limited and somewhat haphazard. A second, and much more important, form of influence on the courts is more indirect: the legal academy's inculcation of a "culture of rationalism." This rationalism has three principal components: a discourse of instrumental rationality; a perpetual roving commission to ferret out decisions based on tradition, faith, and emotion; and deference to the opinions prevalent among an educated class. This culture has various unfortunate consequences, and finally results in a kind of arrogance that disparages tradition, faith, and intuition as sources of decision, or as modes of living. This culture and its consequences help to explain an otherwise puzzling phenomenon: how it is that personally modest judges become aggressive intermeddlers in the social order.

Jack Wade Nowlin rejects an argument, put forward by advocates of a "moral" reading of the Constitution, that judges have special powers of moral insight, concluding that it has insuperable theoretical and practical difficulties. The obvious and familiar arguments in favor of a special judicial power of moral insight in fact paint a skewed and idealized portrait of judges and courts. On the one hand, the inference of moral "expertise" from a tendency to reach the "right" answers as defined from a particular "thick" or substantive moral standpoint-liberal judges are moral "experts" from a liberal standpoint-is indistinguishable from special pleading and therefore cannot serve as a general argument for expansive judicial power. But, on the other hand, one cannot draw a clear connection between the ability to engage in "thin" sophisticated moral reasoning and the discovery of right answers to difficult moral questions. Moreover, other aspects of the judicial process-such as the primacy of legal interpretation and the practical political constraints on judicial power-suggest that judges typically do not, and indeed cannot, openly engage in sophisticated moral reasoning or develop sophisticated, critical, reflective, reasoned, and coherent moral theories. Judicial moral analysis is inexorably understated, incompletely theorized, and distorted by legal materials (Roe and Casey providing notable examples).


Excerpted from That Eminent Tribunal Copyright © 2004 by Princeton University Press. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Introduction 1
Ch. 1 Is the constitution whatever the winners say it is? 10
Ch. 2 Nationhood and judicial supremacy 20
Ch. 3 "Casey at the bat" - taking another swing at Planned Parenthood v. Casey 37
Ch. 4 Antijural jurisprudence : the vices of the judges enter a new stage 59
Ch. 5 Judicial power and the withering of civil society 85
Ch. 6 The academy, the courts, and the culture of rationalism 97
Ch. 7 Judicial moral expertise and real-world constraints on judicial moral reasoning 118
Ch. 8 Toward a more balanced history of the Supreme Court 141
Ch. 9 Judicial reviews and republican government 159
Ch. 10 The Casey five versus the federalism five : supreme legislator or prudent umpire? 181
Ch. 11 The Rehnquist court and "conservative judicial activism" 199
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