Friday, October 02, 2009

Changing the Courts and Democratic Constitutionalism


Today marks the beginning of our Constitution in 2020 Conference here at Yale Law School, where a group of legal scholars and activists will talk about the Constitution's future.

On the subject of how to change constitutional law and practice, my review of James MacGregor Burns' Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court now is up at the American Prospect. The nice folks over at the American Prospect added the title "What to do about the Court?" and the subtitle, "Not much." That's very amusing, but it's not my view.

There are lots of things for people to do if they think that courts are not responsive to their views about the Constitution. People should fight for the appointment of judges that they believe will interpret the Constitution correctly, and they should push for their views in politics and in civil society. People should protest bad decisions and argue repeatedly for their constitutional vision. And they should devote time and resources to litigation campaigns that are coordinated with efforts in legislatures in administrative agencies, and in political and social life generally. If people work for good judges and persuade their fellow Americans about what the Constitution means, the courts will eventually come around. That is not doing nothing. That is democratic constitutionalism.

History teaches us that the people who influence courts in the long run are those who work hard in politics, in social movements, and in civil society generally. If people had done "not much" in response to court decisions they did not like, we would never have had the civil rights revolution or the women's movement.

Burns argues instead that if the President doesn't get what he wants from the Supreme Court he should just stop obeying judicial decisions and refuse to acknowledge the power of courts to engage in judicial review. As I point out in the review, this is not a strategy that any President in his right mind would adopt, because Presidents need courts to further and legitimate their agendas. The power to legitimate is the flip side of the power to strike things down. President Frankin Roosevelt, for example, wanted courts to work for him to legitimate New Deal programs-- that was the whole point of the court packing plan-- and after justices started retiring in 1937, FDR replaced them with New Dealers. Then, not surprisingly, he stopped complaining so much about the courts.

Perhaps the greatest irony in Burns' book is that he advocates that Presidents deliberately disobey courts that try to rein them in only a year after the end of the Bush Administration. One shudders at what Dick Cheney would have done with Burns' advice. Indeed, we are particularly fortunate that despite taking aggressive and often unreasonable positions about the Constitution, the Bush Administration obeyed court decisions that pushed back at its worst policies; otherwise it could have done even more harm to the rule of law and to constitutional government.

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