Friday, May 30, 2008

The Forum of Principle Revisited Again

Mark Graber

Most law professors and lawyers are convinced that the Supreme Court has a special capacity to be guided by constitutional values. Professor Ronald Dworkin of Oxford and New York University Law School described the Supreme Court as “an institution that calls some issues from the battleground of power politics to the forum of principle.” The Supreme Court “is predestined in the long run not only by the thrilling tradition of Anglo-American law but also by the hard facts of its position in the structure of American institutions,” Professor Henry Hart of Harvard Law School agreed, “to be a voice of reason, charged with the creative function of discerning afresh and of articulating and developing impersonal and durable principles of constitutional law.” Elected officials who make the slightest effort to limit federal judicial power bring down the wrath of a united bar. Lawyers of different political persuasions do not agree on much, but most wax eloquent about the virtues of an independent judiciary.

American constitutional history does not support these ritual celebrations. Everyone lionizes the judicial decision in Brown v. Board of Education (1954). A fair consensus has developed that the Supreme Court during the 1950s and 1960s improved the quality of constitutional justice in the United States by prohibiting official school prayer, protecting free speech, providing counsel for impecunious criminal defendants, and requiring more equitable legislative districting. When discussion moves from the Warren Court to the other 204 years of American history, the merits of judicial review and judicial independence are less clear. By almost any standard, the Court performed worse than Congress until 1954 and arguably has not performed better (or much better) after 1969.

Judicial review of federal legislation does not appear to have served any noble purpose for the first 165 years of constitutional life. Not one Supreme Court decision declaring an important federal law unconstitutional in this time period is presently thought correct by most scholars or informed citizens. More often, a broad consensus chastises the justices for striking down beneficial policies well within the constitutional powers of Congress. Most lawyers praise Marbury v. Madison (1803) for justifying judicial review of federal legislation, but few insist that the decision declaring unconstitutional an obscure section of the Judiciary Act was important or correct. Almost all lawyers [minus a nut case whose book is to your right] condemn Dred Scott v. Sandford (1856), the next instance when the Supreme Court declared a federal law unconstitutional. Very few law professors have good words for Hepburn v. Griswold (1869), the decision declaring that Congress unconstitutionally made paper money legal tender during the Civil War, Pollock v. Farmers' Loan and Trust Company (1895), the decision declaring the federal income tax unconstitutional, and the judicial decisions striking down New Deal legislation during the 1930s. Bolling v. Sharpe (1954) is the first case in American history in which a consensus now exists that the Supreme Court correctly declared a federal law unconstitutional.

Whether the Burger, Rehnquist and Roberts Courts have demonstrated more constitutional fidelity than national elected officials is controversial at best. The Supreme Court during the Rehnquist years declared more federal laws unconstitutional than at any other time in American judicial history. The federal laws struck down included affirmative action policies, regulations on campaign finance, limits on commercial advertizing, measures expanding religious freedom, restrictions on state sovereignty, and efforts to use the interstate commerce power to regulate non-economic activities. No consensus exists as to whether any of these decisions was correct. Many conservatives believe the Rehnquist Court correctly interpreted the Constitution of the United States. Liberals disagree. Whatever the constitutional merits of the decisions, few would argue that the Supreme Court in recent years has shown special solicitude for discrete and powerless minorities, unless one regards the Coors Brewing Company or persons wishing to spend millions of dollars in political campaigns as the most unfortunate Americans.

Readers who question this assessment might consider doing a survey using any constitutional law text commonly assigned in undergraduate or law classes. Leave out the Warren years and consider only Supreme Court decisions declaring federal laws unconstitutional or perhaps only Supreme Court decisions declaring important federal laws unconstitutional. Most scorecards, I suspect, will include more cases in which the Supreme Court struck down constitutional laws than instances when the justices voided unconstitutional measures. The survey of decisions declaring state laws unconstitutional is likely to be more complicated. Still, for every Brown v. Board of Education, there is a Prigg v. Pennsylvania (1842) holding that northern states could not provide statutory protections for free residents of color accused of being fugitive slaves.

When thinking about the role of courts, lawyers, legal scholars and citizens should not automatically treat Brown as a paradigm and such cases as Dred Scott, Hepburn, Pollock and others as anomalies. Seen from broader history perspective, Brown is far more anomalous than Dred Scott. Throughout most of American history (and in many new constitutional democracies), progressives sought legislature victories and played defense in court. The Supreme Court, reformers understood, was far more likely to declare unconstitutional legislative efforts to promote political equality than prevent elected officials from discriminating unjustly. Times may change, but a good case can be made that, by protecting white persons from affirmative action programs and affluent Americans from campaign finance restrictions, the contemporary Supreme Court is merely reverting to form.



A nice reminder of what an apogee in our jurisprudence the Warren/Burger Courts represented.

Actually, I conjecture things are not so gloomy in the "reversion to form" you point out.

Liberal ideas have been slowly seeping into the judicial and legislative water tables since at least the 1890s and even the current conservatives are not as conservative as they would have been ante-1937.

I theorize that active judicial retrenchment is now "at the margins." Why conservative retrenchment seems more prominent nowadays is that the territory covered by liberal jurisprudence and legislation is so much vaster than pre-New Deal that the boundaries have correspondingly greatly increased.

Think of liberal jurisprudence and legislation as an expanding forest fire. The conservative firefighters are now having to contend with a much longer front.

There are grounds for optimism.

If the Warren Court was anomalous as compared to the other 200+ years of the Supreme Court, query how likely its jurisprudence was to be correct if it was so out of step.

I guess it all depends on what it is you think the Court should be doing.

"The Supreme Court during the Rehnquist years declared more federal laws unconstitutional...and efforts to use the interstate commerce power to regulate non-economic activities."

i hope that last is not a reference to us. v morrison on the vawa.

because if so, it's an extremely tendentious way to characterize the court's decision.

the position of vawa's supporters was that the activities involved were indeed economic, inasmuch as they impinged on citizens' rights to conduct business and to move freely in the course of their business without undue fear of violence.

to characterize it your way, i would think, is to grant that the court's finding was correct. of course the commerce clause powers would be inapposite if the activity involved had no commercial or economic consequences.

but it does, and consequences that are comparable as direct as others that congress has recognized powers to regulate.

i'm not sure you wanted to debate vawa, or were even referring to vawa, but you can see why i wonder.

kid bitzer

Boldface said: "If the Warren Court was anomalous as compared to the other 200+ years of the Supreme Court, query how likely its jurisprudence was to be correct if it was so out of step."

For those who believe social as well as historical evolution occurs; that it is in a positive direction in terms of rights, social cohesion and cooperation(Axelrod, et. al.)and are not enamored of living in a steady-state medieval culture; who also believe that jurisprudence keeps rough pace with those same ongoing changes (And I am one of that number), then the Warren/Burger Courts were to be expected, were not anomalous, and we will most certainly see their like again.

The sooner the better.

One more note:

Think of judicial and legislative revolutions as like crustal shifts along fault lines...the San Andreas Fault comes to mind.

Pressure builds up over time, but conservative forces restrain. Eventually there is a dramatic shift as forces equalize.

These "anomalies" are really to be expected.

anyone care to take a crack at defining what "conservatives" are actually tryng to "conserve" .. ??

at times it almost seems they're conserving classic liberalism .. eh.. ??

i agree with the tectonic shift shift theory .. the question is does it work in both directions ??

the historical trends tend to illustarate that we are advancing the limits of personal freedoms .. and restricting governmental incursions .. but then we get a period like the current one where the obscurantists seem to gain sway [as mourad would say] .. and things get topsy-turvy...

earthquakes of jurispridence .. who would have ever thought it .. eh ??

and then there is the problem of selective interpretation .. where differing observer see a given fruit . one observes as an orange .. the other observes it as an apple [a apple in modern usage] ..

the resulting intellectual divide seems immune to both logic and comity ..

"Very few law professors have good words for Hepburn v. Griswold (1869), the decision declaring that Congress unconstitutionally made paper money legal tender during the Civil War, Pollock v. Farmers' Loan and Trust Company (1895), the decision declaring the federal income tax unconstitutional, and the judicial decisions striking down New Deal legislation during the 1930s."

Law professors are the courtiers to a naked emperor, they are of course going to disparage cases ruling current practice of their liege to be illegitimate. Note that the one case you suggested they were comfortable was correct was the one among those that still stands intact.

Gee, and here I thought the Warren Court was one of the worst we ever had.

As a number of observers have commented on the October 2006 Term of the Supreme Court, the most reliable predictor of the outcome of 5-4 decisions in that term was whether that outcome was the preferred partisan choice of "modern Republicans" (Prof. Tushnet's term for them) outside the Court.

Mark, I think your post emphasized facts that are neglected in lay education about the role of the Supreme Court. I also believe that those posting comments here that emphasize the observer's preference for specific outcomes completely miss the point.

Dred Scott is only the second worst decision in the history of the Court. First place in that category goes to Bush v. Gore for a variety of reasons. None of those reasons, though, relate to partisan preference as to the outcome.

Bush v. Gore is the greatest embarrassment in the history of the Court because the Court (1) abandoned any principled analysis; (2) adopted principles that will never be applied to decide any other legal case; (3) for the purpose of bringing about the partisan political outcome that was preferred by the majority of the Court.

There are objective standards that can be applied to evaluating the integrity of legal reasoning. Whenever a legal argument is distorted [i.e., key facts are omitted or mis-stated, important precedents are ignored or rendered unrecognizable] for the primary purpose of reaching a preferred partisan outcome, that argument has lost its integrity. Since these objective standards are not mathematically precise, there will often be differences of opinion about which decisions have integrity and which decisions do not. But extreme cases like Bush v. Gore and Dred Scott cannot be defended as having judicial integrity under any objective standard.

One of the most unfortunate characteristics of the Rehnquist and Roberts courts has been that so many of the decisions in which the "modern Republicans" have prevailed have been decided by adopting canons of construction or other concepts that the conservative majorities reject as inferior or improper except when the approach condemned in other opinions is the only way to reach the preferred partisan outcome. The Court's string of decisions construing the Federal Arbitration Act as establishing a federal law of arbitration that ousted all state courts of any independent authority to construe arbitration clauses is one of the examples that has bothered me for the last 20 years, as the reach of the FAA has been extended so far beyond any rational construction of its language, its legislative history and intent, its proper role in a federal system, and the proper balance of the rights of individuals versus corporations that the judicial usurpation has been breathtaking!

There are other examples, of course, including the Rehnquist Court's creative but unprincipled extension of the 11th Amendment as a restriction on the power of Congress to legislate. There are undoubtedly many other examples that I am not as familiar with.

But your principal point, Mark, is absolutely correct: The Supreme Court is an institution that can make principled decisions about constitutional construction and about the scope and application of federal statutes. It can also make unprincipled decisions that enshrine raw partisan preference in federal statutory or constitutional law. Which way the Court as an institution may go in the next three decades may be decided by the outcome of the election this November.

tray said: "Gee, and here I thought the Warren Court was one of the worst we ever had."

Well, only if you buy into a certain philosophy of judicial restraint that no one in actuality follows to a "t" when it conflicts with their own policy outcome preferences.

This also begs the question of whether a rigid judicial restraint and policy indifference is something any sane society would want in its Justices.

I have decided to stick to love; hate is too great a burden to bear.
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