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.