This post was prepared for a roundtable on Reforming the Supreme Court of the United States, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.
Samuel Issacharoff
On October 5, 1955, when I was just a year old, a New York Times reporter by the name of Edward R. Murrow reported from Buenos Aires on developments in the Argentine judiciary. The report concerned the actions of the new military head of state, Lt. General Eduardo Lonardi, in dismissing the entire Supreme Court and announcing that five new members would be installed that same week. General Lonardi carried forward a national tradition of term limits and rotation in office that ensured there would be no imperial judiciary frustrating the exercise of state authority.
It is unlikely any tears were shed over the demise of the prior Court, as it too was a subordinated institution. Upon taking power in 1946, Juan Perón put three of the Court’s five judges on trial, forced the resignation of a fourth, and then forced the capitulation of the last member of the Court. Not surprisingly, Perón’s Court was a servile institution that formalized the demands of that particular government. So ran a process where until the 21st century, most Argentine heads of state were able to replace the entire membership of the Court. So too the pattern can be seen in Peru under Fujimori, in Russia under Yeltsin and then Putin, in Nicaragua under Ortega, in Bolivia under Morales, and in the retirement/replacement/reassignment of the top judiciaries in Poland, Hungary, and the remaining jewels of current illiberal populism.
For those worried about the countermajoritarian dilemma, Argentina offers a judiciary that for almost the entire 20th century acted in tight conformity with the political authorities – leaving aside the technicality that the counting of the political majority frequently consisted of comparing bullets not ballots. There are of course details about how the judicial power should be constructed, as evident from the extensive work of the recent presidential commission in the United States. My own preferences would run to 12- or 18-year terms on the highest court, with rotation to the other ranks of the judiciary once that service in complete. The hope is that, as in Germany, this may temper some of the confirmation battles and reduce some of the lag between political and judicial power.
At some point, however, alterations in the form of judicial service are designed to render inconsequential the exercise of judicial authority. When the Peruvian Constitutional Court confronted the increasingly authoritarian regime of Alberto Fujimori, the result was a series of presidential decrees that effectively shuttered the Court. To this day, the Court plays only a limited role in Peru, in part because its seven members serve only a single, non-renewable five-year term. With tenure that short, judges no sooner begin to learn the job when they are forced to begin worrying about where they will return to when their terms are up. Given that many are drawn from state universities or the higher ranks of the civil service, there is a pronounced reluctance to confront official power in any form.
In reality, most of the debates on the need to restructure the judiciary turn not on the mechanics of appointment, on abstract or case specific judicial review, on the discretion embodied in certiorari review, or on prudential considerations such as standing. Instead, most of the non-academic debates are fueled by political winners being unable to claim what they believe are their full desserts from their time in power. One may speculate the extent that is true for academic disenchantment as well.
Oddly, the major sources of indictment of the U.S. Supreme Court at present are as likely to draw from charges of insufficiently overturning political majorities rather than of doing so to excess. If one looks at the world of abortion rights or the death penalty, for example, the rights-based claims of a woman’s right to choose, or the right to effective counsel, are invoked as counters to the fact that abortion prohibitions are rising at the state level, as is the perpetuation of the death penalty, at least as a formal matter on the books. The burden of Jamal Greene’s book on judicial review is to urge greater accommodation of American judicial doctrine to strongly held political determinations.
No matter how formulated, however, there is no escaping that the aim of a constitutional court is to have some lag between political and judicial power. This is the heart of the debate over judicial review and it is all the more pressing in an era in which the legislative branch in virtually all democratic countries has succumbed to strongman or dominant party rule. The structures of either Montesquieu-style separation of powers or Westminster parliamentary command are deeply compromised by the failings of democratic legislatures before an increasingly imperial chief magistrate. In such circumstances, the judiciary may serve as the central institutional counterweight to the hypertrophic reach of executive power, today more likely to be marshaled through decrees and administrative authority rather than the tanks rumbling down Avenida del Libertador in Buenos Aires.
Today’s illiberals are more likely to rule after election to office rather than through a coup or, as shockingly in Ukraine, a military invasion. The ensuing populist claims to majoritarian rewards places constitutionalism in frequent combat with democracy, much as the post-WW II fashion was to treat these as synonymous terms. As expressed pithily from his perch in parliament by the de facto ruler of Poland, Jaroslaw Kazcynski, “In a democracy, the sovereign is the people, their representatives in Parliament and … the elected president… If we are to have a democratic state of law, no state authority, including a Constitutional Tribunal, can disregard legislation.”
Amid increasing discomfort before an assertive judiciary protected by life tenure there is an understandable desire to say this time the courts have gone too far. But major institutional reforms are rarely without collateral consequences, both anticipated and beyond the imagination of the reforming impulse. Weakening the judiciary as an institution, let alone disabling its countermajoritarian authority in favor of unmediated political power, is high risk. Especially in times when that power is likely to be concentrated in executive hands, the desire to risk all on momentary political power recalls the jurisprudence of Harry Callahan (a/k/a Clint Eastwood): “Do I feel lucky?”
Samuel Issacharoff is the Bonnie and Richard Reiss Professor of Constitutional Law at New York University School of Law. You can contact him at issacharoff@mercury.law.nyu.edu.