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March|April 2005
Pop Con By David A. Strauss
Lawyers, Unite By Scott Cummings and Ingrid Eagly
America the Mercurial By Michael Ignatieff
Asking for Trouble By Phillip Carter

Pop Con

One of the hot ideas in the legal academy is that the people should have supremacy over the courts. The problem is that the people don't want that.

By David A. Strauss

SHOULD THE SUPREME COURT HAVE THE LAST WORD on what the Constitution means? Among the justices, and probably the general population as well, the answer seems obvious: Of course it should. That is what it means to be governed by law. But among constitutional law scholars, one of the hot new ideas is "popular constitutionalism," a theory that "the people," acting through politics, should determine the meaning of the Constitution. According to the popular constitutionalists, either the Supreme Court should get out of the business of interpreting the Constitution or, more combatively, the people should retaliate against the court when it interprets the Constitution in ways with which they disagree.

It's hard to say whether the popular constitutionalists are right, but the good news—well, it may or may not be good news—is that the answer probably doesn't matter. Consciously or not, the Supreme Court has figured out a way to pursue an aggressive agenda without incurring too much popular opposition. The popular constitutionalists are trying to rally "thle people" against the unelected, life-tenured, out-of-touch justices. But the people do not seem all that unhappy with what the justices are doing.

SOME POPULAR CONSTITUTIONALISTS ARE SKEPTICAL about, or opposed to, judicial review. They believe that the power of the courts to declare statutes unconstitutional should be limited, or perhaps eliminated. At the more revolutionary end of this continuum, Mark Tushnet of Georgetown University Law Center, in his 2000 book Taking the Constitution Away From the Courts, proposed that the courts should simply get out of the business of judicial review. For one thing, Tushnet said, judicial review produces at least as many bad decisions as good ones. For every Brown v. Board of Education declaring segregation unconstitutional, there is a Dred Scott decision expanding the constitutional protection of slavery, or a Lochner decision striking down important regulatory or welfare legislation. More important, according to Tushnet, getting courts out of the business of judicial review would encourage popular deliberation over questions of equality and fundamental rights. Legislatures would more carefully protect constitutional rights if the courts were not there as a backstop.

A different kind of judicial review skepticism revives an approach first advanced by James Bradley Thayer at the end of the 19th century and embraced by Justice Felix Frankfurter in the mid-20th century. Adrian Vermeule of the University of Chicago—a former law clerk for Justice Antonin Scalia and, unlike most other popular constitutionalists, not an outspoken liberal politically—has staked out this position. The hallmark of this kind of skepticism is a distrust of judges' ability to make decisions about equality, fundamental rights, and the limits of government power—decisions that require complex and controversial judgments about questions of policy and fairness and about the way the world works. Elected legislators will do much better with those kinds of questions; the courts, Vermeule says, should stick to enforcing the clear provisions of the Constitution, like those specifying the qualifications for federal office. The justices should not try to interpret or enforce controversy-generating, vaguely worded provisions like the Equal Protection Clause and the Bill of Rights.

QUITE APART FROM THE JUDICIAL REVIEW SKEPTICS, another version of popular constitutionalism has appeared, or reappeared, on the intellectual scene. This view is usually called "departmentalism," a clunky term that belies its combative essence. The departmentalists say that, while the Supreme Court has the power to decide constitutional questions, the other branches of government have that power too. As long as the other branches do not disregard a specific order from the court, they have no obligation to accept what the Supreme Court says. Congress could, for example, pass laws that the Supreme Court's precedents condemn as unconstitutional—if Congress interprets the Constitution differently. People would have to bring lawsuits challenging those statutes, and the court, confronted with sustained opposition from the other branches, might back off. The departmentalists' objection is not so much to judicial review—the Supreme Court's power to decide that other laws are inconsistent with the Constitution—as to judicial supremacy, the idea that the Supreme Court's interpretations of the Constitution govern everyone else.

The departmentalists' most famous manifesto is Abraham Lincoln's First Inaugural Address. Lincoln acknowledged that the parties to the Dred Scott case had to comply with the court's ruling. But he insisted that the ruling had no effect beyond that. The other branches could adopt, and act on, a different view of what the Constitution said about slavery. Lincoln's administration treated blacks as citizens, even though the Supreme Court had held that they were not, and Lincoln brought about the abolition of slavery in the District of Columbia and in the territories, even though Dred Scott had ruled that the federal government lacked that power.

In 2004, Larry Kramer, the dean of Stanford Law School, revived the departmentalist view in a book titled The People Themselves. Kramer argued that Lincoln's position was not anomalous; Thomas Jefferson, Andrew Jackson, and Franklin Roosevelt said similar things and fought back against Supreme Court decisions when they believed those decisions to be deeply wrong. Roosevelt, for example, threatened to expand the size of the court and pack it with justices friendly to his positions. The Jeffersonians impeached and nearly removed a justice.

Following the historian Gordon Wood, Kramer says that one of the great innovations of American constitutionalism is the idea that constitutions are the work not of existing government institutions but of the people, who gathered in special conventions to ratify both the early state constitutions and, later, the federal Constitution. After ratification, Kramer says, the idea persisted that the people were the ultimate authority on the meaning of the Constitution. The people would exert that authority through elections, by their actions as members of juries, or, in some cases, by demonstrations or even riots.

When Jefferson, Jackson, Lincoln, and Roosevelt took on the court, Kramer maintains, they were appealing over the court's head to the people. He argues that the threat of such an appeal—which today might take the form of, say, cutting the court's budget or jurisdiction—has checked the court in the past and would again. The uncritical acceptance of judicial supremacy—which, according to Kramer, has come about only since the middle of the 20th century—has made the court far too self-confident. A revival of departmentalism could reverse that trend and make the court more circumspect, for the better.

Why has popular constitutionalism emerged just now? Two possible explanations have some initial appeal: that popular constitutionalism is the outgrowth of a more general skepticism about legal reasoning, captured in the slogan "law is politics," and that the interest in popular constitutionalism merely reflects liberals' unhappiness with a conservative court. But on closer examination, both of these explanations fall short.

The phrase "law is politics" crudely summarizes a current in American legal culture that has been prominent since the Legal Realists of the 1930s. Some, though certainly not all, Realists denied that there was anything distinctive about legal reasoning. The kinds of reasoning that lawyers and judges engage in, they said, are just mystification, a way of rationalizing positions that derive from personal preferences and moral or political views. In some respects, the Critical Legal Studies movement, which was prominent in law schools in the 1980s, revived this view.

If all law is politics, then Supreme Court rulings in controversial, high-profile cases—about reproductive rights, affirmative action, or freedom of expression, for example—are the clearest examples of politics masquerading as law. The next step follows easily. Since it's all politics anyway, the people and the elected branches of government—not the Supreme Court—should have the final say. And whatever you think about the general claim that "law is politics," there is something questionable about saying that skilled lawyers have special insight into a question like whether women should have a right to an abortion.

But skepticism about law and legal reasoning does not, by itself, account for the current interest in popular constitutionalism. Few of the adherents to popular constitutionalism would deny that lawyers often engage in a distinctive form of reasoning based on precedents and on a close reading of authoritative texts. Conventional legal reasoning of this kind has its own integrity; it can, and often does, lead judges to reach conclusions that are at odds with their political views. Most of the popular constitutionalists explicitly set aside certain kinds of technical constitutional questions as issues on which they are content to give the courts the last word. Few of them evince skepticism about legal reasoning outside of controversial constitutional cases.

The other initially appealing explanation for popular constitutionalism is that liberals are fair-weather friends when it comes to the Supreme Court. When the Warren Court was deciding cases in ways that liberals liked, the argument goes, there was a cottage industry among liberal legal academics devoted to explaining why judges—with their insulation from popular passion and their capacity for philosophical reflection—were uniquely well suited to deciding the great questions that divided society. Now that the court has turned conservative, liberals have decided that courts aren't so good at answering those questions after all, and that we'd be better off trusting "the people."

But this explanation doesn't quite work either. Surely the liberal popular constitutionalists have noticed that the Supreme Court isn't relentlessly conservative, and that "the people" aren't all that liberal. Many liberals are counting on the courts to maintain abortion rights in the face of popular sentiment; the current court is probably less hostile to criminal defendants than are the political branches, or public opinion; and this court is capable of audacious acts that liberals applaud, like the recent decisions rejecting the Bush Administration's claims to near-absolute power over enemy combatants. Probably for this reason, some of the most bitter opponents of popular constitutionalism are prominent liberals. And some of the most rigorous popular constitutionalists aren't.

PROBABLY THE BEST EXPLANATION FOR THE BURST OF INTEREST in popular constitutionalism is that it is a matter of action and reaction of a kind seen many times before. The current Supreme Court is as self-confident as any Supreme Court has ever been. For at least a generation, not a single justice has even pretended to hold the Thayer-Frankfurter view that the court should uphold every statute that is even arguably constitutional. All the movement has been in the other direction: The court has gotten more aggressive, more emphatic about its own importance, and more hostile when Congress has disagreed with its interpretations of the Constitution.

In the past, as Kramer's book shows, whenever the Supreme Court has become aggressive, it has encountered political hostility and a concomitant reassertion of some version of popular constitutionalism. Thomas Jefferson, and later Andrew Jackson, in response to Chief Justice John Marshall's consolidation of federal power; Abraham Lincoln, in response to Dred Scott; Franklin Roosevelt, in response to the pre-New Deal court's attacks on the welfare and regulatory state; southern segregationists and, to a lesser degree, responsible conservatives, in response to the Warren Court—all used forms of popular constitutionalism to wage their battles, and all gained significant political support. Today's court has elicited the same kind of response, but only from academics. The notable thing is not the emergence of popular constitutionalism; it is that popular constitutionalism has so little resonance among the people. The Supreme Court, as self-confident and aggressive as it has ever been in confronting the elected branches of government, remains fairly popular among the people who do the electing.

Would the country be better off if the courts just got out of the business of declaring laws unconstitutional? Would the political branches become more responsible in thinking about constitutional issues, if they knew that no court would review their actions? Any answer would be almost wholly speculative. It is like asking whether we'd be better off if we abolished the Senate.

WHAT I CAN SAY WITH SOME CONFIDENCE is that relatively vigorous judicial review is part of our system and will remain so for the foreseeable future. The real issues we face are more marginal. Should the court be more or less demanding in reviewing the constitutionality of legislation? In which areas should it assert its power? The Warren Court used its power mostly on behalf of those it saw as dispossessed minorities; the current court uses its power on behalf of, among others, commercial advertisers and opponents of affirmative action. Questions about which is the better role for the court—and how aggressive it should be in playing that role—will have to be resolved. The continued viability of judicial review is not, realistically, on the table.

As for departmentalism, again, the debate matters less than you might think, for close to the opposite reason. The departmentalists are already getting their way, although perhaps not as much as they'd like, because even this court is not insensitive to popular reaction. Consciously or not—probably mostly unconsciously—the court has, in effect, pre-empted popular opposition by giving ground before a battle gets ugly.

Beginning in the late 1980s, for example, the Supreme Court flirted with outlawing affirmative action. But when the moment of truth came, in the recent cases involving the University of Michigan, nearly all the power centers in society—state and local governments, private and public universities, Fortune 500 companies—insisted that they needed affirmative action, and the court decided that the policy was not so bad. The court struck down a Texas law under which homosexual sodomy was a crime with an opinion that left room to maneuver in either direction on more controversial issues (such as gay marriage)—depending in part, surely, on how public opinion develops. Last term, after intense popular sentiment led to the enactment of the McCain-Feingold Act reforming campaign finance, the court again reversed course. Although its earlier decisions had suggested that such reforms would violate the First Amendment, the court upheld all the central provisions of the Act. And on some matters—like abortion, and some civil liberties issues like the rights of enemy combatants—the court has made itself indispensable to liberals who might otherwise be tempted to declare war on it.

The current Supreme Court, as aggressive as it is, is just not that far out of tune with popular opinion. On most issues the court is conservative, but sometimes it tacks in a more liberal direction. Most of its acts of judicial imperialism either have significant popular support or are at least not too objectionable. Bush v. Gore was a breathtaking and historically unprecedented judicial power grab—the court effectively decided a presidential election on extremely dubious legal grounds—but the election was very close and at the time many people thought that there was not much difference between the candidates. Popular constitutionalists wonder why the people have allowed the court to appropriate so much power and why they haven't fought back. Maybe it's because the people, for the most part, don't mind what the court is doing.

For those of us who do mind a lot of what the court is doing, this is not an encouraging conclusion. But it does suggest that popular constitutionalism is not now the path to salvation for critics of the court. One of these days the court may overstep again and get itself seriously out of line with public opinion, as it did in the 1930s. Then, but only then, will popular constitutionalism have its day.

David A. Strauss teaches constitutional law at the University of Chicago.

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