Tuesday, July 05, 2016

Not the Warren Court (or Deja-Vu All Over Again)

Mark Graber

American progressives are rekindling their love affair with federal judicial power.  The American left during the 1960s and early 1970s was smitten by a Supreme Court that protected political dissenters, racial minorities, persons suspected of criminal offenses and privacy rights.  Passions faded as the Warren and Burger Courts evolved into the Rehnquist and Roberts Courts.  Prominent liberal commentators urged judicial minimalism, constitutional dialogues, deference to constitutional decisions made by elected officials, vesting ultimate constitutional authority in "the people themselves," and “taking the Constitution away from the courts” entirely.  Romance is blooming anew in the wake of Justice Antonin Scalia’s death, recent judicial decisions sustaining affirmative action and protecting abortion rights, and the probability that only Democrats will have the opportunity to appoint Supreme Court justices for the foreseeable future.  Mark Tushnet, a prominent skeptic of judicial power, now calls on young progressives in the legal academy to propose theories of liberal judicial activism, abandoning their previous “defensive crouch.”

Before the left again professes undying fidelity to judicial power, progressives should note that the liberal judicial activism of June 2016 has different political foundations than the liberal judicial activism of the Warren and Burger Courts.  The liberal judicial activism of the third quarter of the twentieth century was generated by a political system structured by competition between two non-ideological parties.  The elite wings of both the Democratic and Republican Parties controlled the Justice Department and both were liberal on most civil rights issues.  Democratic and Republican presidents made self-conscious efforts to appoint liberals to the court.  Republicans and Democrats on the court had similar liberal voting patterns.  The result of these constitutional politics was bipartisan liberal judicial activism.  The liberal judicial activism of June 2016 is generated by a political system structured by relative equal competition between two polarized parties. The elite wings of the Democratic and Republican Parties who take turns controlling the Justice Department are even more polarized than the general population.  Democrats appoint judicial liberals to the federal courts.  Republicans appoint judicial conservatives.  With rare exceptions, Democratic judicial appointees take more liberal positions on all constitutional issues than Republican judicial appointments.  The result of this constitutional politics is a judiciary badly divided between liberal and conservative blocs, with decisions depending on the fortuitous timing of judicial vacancies and the idiosyncrasies of the one quirky judge who was appointed during the time when the political system was transitioning from non-ideological to ideological parties. 

Elite polarization, electoral instability and divided government have unmoored the course of judicial decisionmaking from the structure of partisan competition.  Polarization fuels efforts to secure partisan control of the courts.  Electoral instability and divided government prevent either party from claiming a durable mandate to make their constitutional vision the law of the land, while providing each party with the veto points necessary to prevent the other coalition from altering the course of judicial decision making.  Governing officials who once empowered courts to resolve certain constitutional issues are now politically disempowered from challenging liberal or conservative judicial decisions.  Random events determine the course of Supreme Court decision making.  The Supreme Court moved to the left in 2016 only because Justice Scalia happened to die before Justice Ginsburg and elected officials were too divided to either buttress the new judicial trend or challenge judicial authority. 

At the risk of being macabre, consider the outcome of the 2015-2016 term had Justice Ginsburg died rather than Justice Scalia.  The Supreme Court would have dealt death blows to public sector unions in Friedrichs v. California Teachers Association, sharply curtailed the use of affirmative action in Fisher v. University of Texas at Austin, permanently enjoined the enforcement of Obama administration immigration policies in United States v. Texas, and expanded state sovereign immunity in Franchise Tax Board of California v. Hyatt.  The abortion regulations at issue in Whole Women’s Health v. Hellerstedt would have been sustained by a 4-4 vote.  A high probability exists that the justices by a 5-3 vote in Zubik v. Burwell (2016) would have ruled that federal government could not require religious institutions to note on a form that they had an exemption from the contraception mandate. 

The result is a course of judicial rulings not justified by the connections to the rest of the political system necessary to support the judicial power to have the final say on the meaning of constitutional provisions.  Judicial supremacy does not require judicial independence because popular constitutionalism is not the alternative to judicial supremacy.  The “people themselves” have the same power to choose whether to vest the Supreme Court of the United States with the power to determine the constitutional status of same-sex marriage as they have to decide whether persons have a constitutional right to same-sex marriage.  To the extent a course of judicial decisions is rooted in the consistent, stable, self-conscious and public choices of public officials, the argument for giving final say to the Supreme Court combines the strength of the traditional arguments for judicial supremacy (courts have special virtues) with the arguments for popular constitutionalism (the people have endorsed some version of the argument for judicial supremacy).  The legal liberalism of the Warren Court was legitimate because that course of judicial decision making had strong political foundations.  That the Supreme Court in 2016 is arguably more independent from the elected branches of the national government than at any previous point in the history of the United States, weakens rather than strengthens the case for treating the justices as having the final say when rulings on abortion, affirmative action and other matters decided during the 2015-16 judicial term.    

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