Judicial Role

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JUDICIAL ROLE

Theories about the proper role of the Supreme Court have proliferated in recent decades. These theories have been too political in one sense and not political enough in another. They are too political in that they tend to be thinly veiled rationalizations of political preferences, valued less for their own sakes than for the results they entail in specific controversies. Today, knowing someone's attitude about the role of the Court, one can usually deduce his or her political positions, not so much on economic regulation as on some divisive social questions.

To arrive at a consensus about judicial activism, we need a political situation in which most groups feel that they have at least as much to gain as to lose by subscribing to an agreed conception of the Court's role. No such consensus exists. Today the country is divided over several major social issues: crime, pornography, race, women's roles, homosexuality, and religion. Ever since the 1950s, social liberals have believed that on most of those issues they have everything to gain and little to lose by judicial intervention; conversely, social conservatives have usually had a stake in confining the Court's role. Each camp has fashioned jurisprudential theories that reflect its perceived stake in judicial activism or restraint. In this sense, the debate about the Court's role is basically political.

Yet the debate is usually couched in legal terms, and in this sense, it is excessively legalistic. Commentators usually do not directly discuss the appropriate role of the Court; instead, they argue about how to interpret the Constitution. Thus, proponents of judicial activism espouse loose-constructionist theories of interpretation, and advocates of judicial restraint usually defend a more literal adherence to the text and its original meaning.

This familiar argument has long since become repetitive and unenlightening. Worse still, it treats fundamental political questions as if they were analogous to disputes over the meanings of contracts. To analyze judicial governance solely in legal terms implies that objections to a broad judicial role can be fully met by a cogent legal response, such as an interpretation of a precedent, the ninth amendment, or the equal protection clause. Admittedly, such analyses are essential, and they may indeed solve the purely legal aspect of a constitutional problem. But fidelity to law is not the only constitutional virtue, for the Constitution is a political charter as well as a legal text. If judicial lawlessness were the sole issue, we could solve every problem with a constitutional amendment saying, "It shall be unconstitutional to treat any social problem unwisely; the Supreme Court may enforce this provision on its own motion." That would eliminate every legal ground for objecting to a large judicial role, and yet the political objections obviously would remain.

Legalism is popularly identified with a restrictive view of the Court's role, but as this hypothetical amendment illustrates, that assumption is only a half-truth. After the Justices sweep past the Maginot Line of original intent, legalism is as likely to justify judicial activism as restraint, offering no solid resistance to continual enlargement of judicial power. Legal training breeds indifference to trends; in most fields of law, lawyers ordinarily evaluate decisions as correct or incorrect, not as contributing to a tendency that should be evaluated as such. The law is expected to evolve and grow toward the limits of its logic; indeed, the very word "trend" connotes gradualism, a legal virtue. In common law fields, that attitude is generally harmless. The doctrine of promissory estoppel, idling in a backwater of the law of contracts, does not affect our system of government, and even if it did, the legislature could change it. In constitutional law, by contrast, the Court's role has enormous political implications; as in all politics, constitutional trends may be ominous well before the day of reckoning arrives.

In an effort to supplement narrow legal standards, some scholars have offered political objections to judicial activism. The most common of these objections may be called "the argument from democracy": America is a democracy, but the Court is not electorally accountable; therefore, excessive judicial activism is illegitimate, undermines public respect for the institution, and thus impairs its ability to perform its proper functions.

The argument from democracy, and the usual responses to it, are not narrowly legalistic, and their emphasis on democratic theory is explicitly political. Still, the search for criteria of democratic legitimacy has important similarities to conventional legal analysis: it focuses on individual decisions and doctrines, it asks whether each of them is correct (legitimate) or incorrect, and it seeks to answer that question by applying broad, consistent principles.

Without denying the value of such neolegalistic inquiries, it is important to emphasize that there is another way of looking at the Court's role, focusing less on individual decisions and more on trends and aggregates and recognizing that a decision may be justifiable from one point of view yet harmful from another. Conventional discussions of constitutional jurisprudence, with their legalistic tendency to label decisions as correct or incorrect, tend to obscure the fact that judicial governance, even when it is lawful and legitimate, exacts a price—not always an excessive or even a high price, but a price. For constitutional rights tend to diminish the role of self-government. This is not simply a question of lawfulness or legitimacy. When the Court enforces a constitutional right—even one fairly discoverable in text, traditions, and precedents—it reduces, however slightly, the responsibilities of politicians and reformers. Within the scope of legal expectations aroused by a specific right, they have less incentive to participate in politics. Within the scope of hopes aroused by the Court's general willingness to create rights, they may choose to forgo the onerous burden of self-government, waiting instead for an edict from Washington. Even if reformers lose in the Court, three or four dissents may nourish the hope that new Justices will solve the problem. To that extent, rights tend to relieve reformers of the tasks of citizenship : studying public policy, creating reform commissions, drafting statutes, talking to bureaucrats and politicians, bargaining with opponents, persuading the uncommitted, and compromising. Likewise, judicially created rights sometimes enable politicians to avoid accountability to sharply divided constituencies.

Even as a legal issue, one open to creative solutions, a constitutional right is a problem that has been removed from the fifty states, with all their judges, to one Supreme Court. All other judges, though still free to interpret and suggest, cease to be ultimately responsible.

Admittedly, these hidden prices are nebulous and incalculable. No doubt the price of judicial governance is often low in individual cases, and even when it seems to be high, it may be worth paying. It may be offset by the beneficial effects of judicial intervention, for example, in opening up opportunities for an oppressed class (as in brown v. board of education (1954)), in protecting freedom of speech, or in purifying the electoral process. The essential point is that the citizenry should try to appraise the enlarged judicial role cumulatively—as it appraises the federal budget—and as a problem in government, not merely in law. In constitutional jurisprudence one should consider the destination, not just the next step of the journey. Do we want the Supreme Court to decide, case-by-case over the decades, just when and how the government may regulate sex, marriage, and privacy? To establish national standards for criminal punishment, fashioned case-by-case in litigation? To oversee regulation of the economy? Or provision of housing, under the aegis of a "constitutional right to shelter?" We generally discuss such questions as if they were discrete and legal. Yet they are more than that. They are political choices, most of which can be resolved either way in the long run by the accumulation of precedent, without violating the conventions of legal reasoning and the rule of law. It may sometimes take a more or less lawless decision to get the process started, but every kingdom begins as a usurpation. Given the leading role of precedent in legal analysis, judicial activism is ultimately self-legitimating.

Powell v. Texas (1967) exemplifies the difference between legal and political grounds for judicial restraint. In Powell the issue was whether it was cruel and unusual punishment for Texas to punish a chronic alcoholic for public drunkenness. The trial judge had found that chronic alcoholism is a disease whose symptoms include loss of will power and "a compulsion" to appear drunk in public. This being so, argued Powell's attorney, it would be unconstitutional to treat Powell as a criminal. By a 5–4 vote, the Court rejected this argument and upheld the conviction.

A proponent of strict construction would presumably applaud this decision on the ground that it conformed to the original meaning of "cruel and unusual." But as precedents accumulate, such arguments often lose much or all of whatever cogency they originally possessed. The leading precedent in Powell was Robinson v. California (1962), in which the Court had reversed a conviction for the crime of being "addicted to the use of narcotics." The opinion in Robinson distinguished between punishing someone for an act and punishing him for a "status," the latter being unconstitutional. Some of the language of the opinion implied that the basic defect of a status crime is that a status (insanity or a disease, for example) is, or may be, involuntary. Arguably, therefore, the rationale of Robinson extended beyond status crimes to involuntary acts, including drunken behavior by an alcoholic. To so hold might have been scientifically unsound or unwise, and it might not have been the most persuasive interpretation of Robinson, but given Robinson it could hardly have been described as a blatantly lawless decision. It would have been the sort of expansive but plausible interpretation of a precedent that courts have been handing down for centuries.

A decision in Powell's favor would also have been consistent with some of the neolegalistic criteria fashioned by jurisprudents to identify fields in which the Supreme Court's activism is legitimate. Criminal law is an area in which the courts have traditionally played a major role, and properly so because of their expertise and the tendency of popular majorities to be insensitive to the need for fairness toward criminals. Criminal defendants can be thought of as the functional equivalent of racial and religious minorities. In displacing a state court's rules of criminal responsibility, the Supreme Court is not overriding democracy but merely correcting other judges.

Although not violative of the rule of law, a broad reading of Robinson would have vastly expanded the Court's role, for it would have made a potential constitutional case out of every issue of free will—for example, defenses based on drunkenness and insanity. Legalistic arguments for judicial restraint do not adequately describe the implications of this sort of decision. On one side of the scale are the virtues, real or imagined, of uniformity and rationality. On the other side is the impact not only on the Court's caseload but on the values of federalism : freedom, diversity, and relatively widespread citizen participation in government. Federalism's values are embedded in our constitutional order, but in a case like Powell they are not "the law" in the usual sense of an authoritative rule of decision on whose binding force well-trained lawyers would agree; they are, rather, the political virtues without which constitutional jurisprudence becomes sophistry.

David P. Bryden
(1992)