Judicial Review and Democracy
JUDICIAL REVIEW AND DEMOCRACY
The American ideal of democracy lives in constant tension with the American ideal of judicial review in the service of individual liberties. It is a tension that sometimes erupts in crisis. thomas jefferson planned a campaign of impeachments to rid the bench, and particularly the Supreme Court, of Federalist judges. The campaign collapsed when the impeachment of Associate Justice samuel chase failed in the Senate. franklin d. roosevelt, frustrated by a Court majority that repeatedly struck down New Deal economic measures, tried to "pack" the Court with additional Justices. That effort was defeated in Congress, though the attempt may have persuaded some Justices to alter their behavior. In recent years there have been movements in Congress to deprive federal courts of jurisdiction over cases involving such matters as abortion, school busing, and school prayer (see religion in public schools)—topics on which the Court's decisions have angered strong and articulate constituencies.
The problem is the resolution of what Robert Dahl called the Madisonian dilemma. The United States was founded as a Madisonian system, one that allows majorities to govern wide and important areas of life simply because they are majorities, but that also holds that individuals have some freedoms that must be exempt from majority control. The dilemma is that neither the majority nor the minority can be trusted to define the proper spheres of democratic authority and individual liberty.
It is not at all clear that the Founders envisaged a leading role for the judiciary in the resolution of this dilemma, for they thought of the third branch as relatively insignificant. Over time, however, Americans have come to assume that the definition of majority power and minority freedom is primarily the function of the judiciary, most particularly the function of the Supreme Court. This assumption places a great responsibility upon constitutional theory. America's basic method of policymaking is majoritarian. Thus, to justify exercise of a power to set at naught the considered decisions of elected representatives, judges must achieve, in alexander bickel's phrase, "a rigorous general accord between judicial supremacy and democratic theory, so that the boundaries of the one could be described with some precision in terms of the other." At one time, an accord was based on the understanding that judges followed the intentions of the Framers and ratifiers of the Constitution, a legal document enacted by majorities, though subject to alteration only by supermajorities. A conflict between democracy and judicial review did not arise because the respective areas of each were specified and intended to be inviolate. Though this obedience to original intent was occasionally more pretense than reality, the accord was achieved in theory, and that theory stated an ideal to which courts were expected to conform. That is no longer so. Many judges and scholars now believe that the courts' obligations to intent are so highly generalized and remote that judges are in fact free to create the Constitution they think appropriate to today's society. The result is that the accord no longer stands even theoretically. The increasing perception that this is so raises the question of what elected officials can do to reclaim authority they regard as wrongfully taken by the judiciary.
There appear to be two possible responses to a judiciary that has overstepped the limits of its legitimate authority. One is political, the other intellectual. It seems tolerably clear that political responses are of limited usefulness, at least in the short run. Impeachment and court-packing, having failed in the past, are unlikely to be resorted to again. Amending the Constitution to correct judicial over-reaching is such a difficult and laborious process (requiring either two-thirds of both houses of Congress or an application for a convention by the legislatures of two-thirds of the states, followed, in either case, by ratification by three-fourths of the states) that it is of little practical assistance. It is sometimes proposed that Congress deal with the problem by removing federal court jurisdiction, using the exceptions clause of Article III of the Constitution in the case of the Supreme Court. The constitutionality of this approach has been much debated, but, in any case, it will often prove not feasible. Removal of all federal court jurisdiction would not return final power either to Congress or to state legislatures but to fifty state court systems. Thus, as a practical matter, this device could not be used as to any subject where national uniformity of constitutional law is necessary or highly desirable. Moreover, jurisdiction removal does not vindicate democratic governance, for it merely shifts ultimate power to different groups of judges. Democratic responses to judicial excesses probably must come through the replacement of judges who die or retire with new judges of different views. But this is a slow and uncertain process, the accidents of mortality being what they are and prediction of what new judges will do being so perilous.
The fact is that there exist few, if any, usable and effective techniques by which federal courts can be kept within constitutional bounds. A Constitution that provides numerous checks and balances between President and Congress provides little to curb a judiciary that expands its powers beyond the allowable meaning of the Constitution. Perhaps one reason is that the Framers, though many of them foresaw that the Supreme Court would review laws for constitutionality, had little experience with such a function. They did not remotely foresee what the power of judicial review was capable of becoming. Nor is it clear that an institutional check—such as Senator robert la follette's proposal to amend the Constitution so that Congress could override a Supreme Court decision by a two-thirds majority—would be desirable. Congress is less likely than the Court to be versed in the Constitution. La Follette's proposal could conceivably wreak as much or more damage to the Court's legitimate powers as it might accomplish in restraining its excesses. That must be reckoned at least a possibility with any of the institutional checks just discussed and is probably one of the reasons that they have rarely been used. In this sense, the Court's vulnerability is one of its most important protections.
If a political check on federal courts is unlikely to succeed, the only rein left is intellectual, the widespread acceptance of a theory of judicial review. After almost two centuries of constitutional adjudication, we appear to be further than ever from the possession of an adequate theory.
In the beginning, there was no controversy over theory. joseph story, who was both an Associate Justice of the Supreme Court and the Dane Professor of Law at Harvard, could write in his Commentaries on the Constitution of the United States, published in 1833, that "I have not the ambition to be the author of any new plan of interpreting the theory of the Constitution, or of enlarging or narrowing its powers by ingenious subtleties and learned doubts." He thought that the job of constitutional judges was to interpret: "The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms and the intention of the parties."
The performance of the courts has not always conformed to this interpretivist ideal. In the last decade or so of the nineteenth century and the first third of the twentieth the Supreme Court assiduously protected economic liberties from federal and state regulation, often in ways that could not be reconciled with the Constitution. The case that stands as the symbol of that era of judicial adventurism is lochner v. new york (1905), which struck down the state's law regulating maximum hours for bakers. That era ended when Franklin D. Roosevelt's appointments remade the Court, and Lochner is now generally regarded as discredited.
But, if the Court stopped defending economic liberties without constitutional justification in the mid-1930s, it began in the mid-1950s to make other decisions for which it offered little or no constitutional argument. It had been generally assumed that constitutional questions were to be answered on grounds of historical intent, but the Court began to make decisions that could hardly be, and were not, justified on that basis. Existing constitutional protections were expanded and new ones created. Sizable minorities on the Court indicated a willingness to go still further. The widespread perception that the judiciary was recreating the Constitution brought the tension between democracy and judicial review once more to a state of intellectual and political crisis.
Much of the new judicial power claimed cannot be derived from the text, structure, or history of the Constitution. Perhaps because of the increasing obviousness of this fact, legal scholars began to erect new theories of the judicial role. These constructs, which appear to be accepted by a majority of those who write about constitutional theory, go by the general name of noninterpretivism. They hold that mere interpretation of the Constitution may be impossible and is certainly inadequate. Judges are assigned not the task of defining the meanings and contours of values found in the historical Constitution but rather the function of creating new values and hence new rights for individuals against majorities. These new values are variously described as arising from "the evolving morality of our tradition," our "conventional morality" as discerned by "the method of philosophy," a "fusion of constitutional law and moral theory," or a higher law of "unwritten natural rights." One author has argued that, since "no defensible criteria" exist "to assess theories of judicial review," the judge should enforce his conception of the good. In all cases, these theories purport to empower judges to override majority will for extraconstitutional reasons.
Judges have articulated theories of their role no less removed from interpretation than those of the noninterpretivist academics. Writing for the Court in griswold v. connecticut (1965), Justice william o. douglas created a constitutional right of privacy that invalidated the state's law against the use of contraceptives. He observed that many provisions of the bill of rights could be viewed as protections of aspects of personal privacy. These provisions were said to add up to a zone of constitutionally secured privacy that did not fall within any particular provision. The scope of this new right was not defined, but the Court has used the concept in a series of cases since, the most controversial being roe v. wade (1973). (See judicial activism and self restraint.)
A similar strategy for the creation of new rights was outlined by Justice william j. brennan in a 1985 address. He characterized the Constitution as being pervasively concerned with human dignity. From this, Justice Brennan drew a more general judicial function of enhancing human dignity, one not confined by the clauses in question and, indeed, capable of nullifying what those clauses reveal of the Framers' intentions. Thus, the address states that continued judicial tolerance of capital punishment causes us to "fall short of the constitutional vision of human dignity." For that reason, Justice Brennan continues to vote that capital punishment violates the Constitution. The potency of this method of generalizing from particular clauses, and then applying the generalization instead of the clauses, may be seen in the fact that it leads to a declaration of the unconstitutionality of a punishment explicitly assumed to be available three times in the Fifth Amendment to the Constitution and once again, some seventy-seven years later, in the fourteenth amendment. By conventional methods of interpretation, it would be impossible to use the Constitution to prohibits that which the Constitution explicitly assumes to be lawful.
Because noninterpretive philosophies have little hard intellectual structure, it is impossible to control them or to predict from any inner logic or principle what they may require. Though it is regularly denied that a return to the judicial function as exemplified in Lochner v. New York is underway or, which comes to the same thing, that decisions are rooted only in the judges' moral predilections, it is difficult to see what else can be involved once the function of searching for the Framers' intent is abandoned. When constitutional adjudication proceeds in a noninterpretive manner, the Court necessarily imposes new values upon the society. They are new in the sense that they cannot be derived by interpretation of the historical Constitution. Moreover, they must rest upon the moral predilections of the judge because the values come out of the moral view that most of us, by definition (since we voted democratically for a different result), do not accept.
This mode of adjudication makes impossible any general accord between judicial supremacy and democratic theory. Instead, it brings the two into head-on conflict. The Constitution specifies certain liberties and allocates all else to democratic processes. Noninterpretivism gives the judge power to invade the province of democracy whenever majority morality conflicts with his own. That is impossible to square either with democratic theory or the concept of law. Attempts have, nonetheless, been made to reconcile, or at least to mitigate, the contradiction. One line of argument is that any society requires a mixture of principle and expediency, that courts are better than legislatures at discerning and formulating principle, and hence may intervene when principle has been inadequately served by the legislative process. Even if one assumes that courts have superior institutional capacities in this respect, which is by no means clear, the conclusion does not follow. By placing certain subjects in the legislative arena, the Constitution holds that the tradeoff between principle and expediency we are entitled to is what the legislature provides. Courts have no mandate to impose a different result merely because they would arrive at a tradeoff that weighed principle more heavily or that took an altogether different value into account.
A different reconciliation of democracy and noninterpretive judicial review begins with the proposition that the Supreme Court is not really final because popular sentiment can in the long run cause it to be overturned. As we know from history, however, it may take decades to over-turn a decision, so that it will be final for many people. Even then an overruling probably cannot be forced if a substantial minority ardently supports the result.
To the degree, then, that the Constitution is not treated as law to be interpreted in conventional fashion, the clash between democracy and judicial review is real. It is also serious. When the judiciary imposes upon democracy limits not to be found in the Constitution, it deprives Americans of a right that is found there, the right to make the laws to govern themselves. Moreover, as courts intervene more frequently to set aside majoritarian outcomes, they teach the lesson that democratic processes are suspect, essentially unprincipled and untrustworthy.
The main charge against a strictly interpretive approach to the Constitution is that the Framers' intentions cannot be known because they could not foresee the changed circumstances of our time. The argument proves too much. If it were true, the judge would be left without any law to apply, and there would be no basis for judicial review.
But that is not what is involved. From the text, the structure, and the history of the Constitution we can usually learn at least the core values the Framers intended to protect. Interpreting the Constitution means discerning the principle the Framers wanted to enact and applying it to today's circumstances. As John Hart Ely put it, interpretivism holds that "the work of the political branches is to be invalidated only in accord with an inference whose starting point, whose underlying premise, is fairly discoverable in the Constitution. That the complete inference will not be found there—because the situation is not likely to have been foreseen—is generally common ground."
This, of course, requires that constitutional doctrine evolve over time. Most doctrine is merely the judge-made superstructure that implements basic constitutional principles, and, because circumstances change, the evolution of doctrine is inevitable. The fourth amendment was framed by men who did not foresee electronic surveillance, but judges may properly apply the central value of that amendment to electronic invasions of personal privacy. The difference between this method and that endorsed by Justices Douglas and Brennan lies in the level of generality employed. Adapting the Fourth Amendment requires the judge merely to recognize a new method of governmental search of one's property. The Justices, on the other hand, create a right so general that it effectively becomes a new clause of the Constitution, one that gives courts no guidance in its application. Modifying doctrine to preserve a value already embedded in the Constitution is an enterprise wholly different in nature from creating new values.
The debate over the legitimate role of the judiciary is likely to continue for some years. Noninterpretivists have not as yet presented an adequate theoretical justification for a judiciary that creates rather than interprets the Constitution. The task of interpretation is often complex and difficult, but it remains the only model of the judicial role that achieves an accord between democracy and judicial review.
Robert H. Bork
Agresto, John 1984 The Supreme Court and Constitutional Democracy. Ithaca, N.Y.: Cornell University Press.
Bickel, Alexander M. 1962 The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Indianapolis: Bobbs-Merrill.
Bork, Robert H. 1985 Styles in Constitutional Theory. South Texas Law Journal 26:383–395.
Choper, Jesse 1980 Judicial Review and the National Political Process. Chicago: University of Chicago Press.
Ely, John Hart 1980 Democracy and Distrust: A Theory of Judicial Review. Cambridge, Mass.: Harvard University Press.
Levy, Leonard W., ed. 1967 Judicial Review and the Supreme Court. New York: Harper & Row.