Vol. 14 No. 2 (February 2004)

THE MYTH OF THE IMPERIAL JUDICIARY: WHY THE RIGHT IS WRONG ABOUT THE COURTS by Mark Kozlowski.  New York: New York University Press, 2003. 293pp. Cloth. $30. ISBN: 0-8147-4775-2. 

Reviewed by Stephen B. Burbank, University of Pennsylvania Law School. Email: sburbank@law.upenn.edu

Mark Kozlowski, a lawyer with a Ph.D. in political science, serves as Associate Counsel of the Brennan Center for Justice at NYU Law School, where his special interest has been judicial independence. In this book his announced goal is to unpack and evaluate claims by the American right that courts have become "imperial," arrogating to themselves powers far greater, and exercising them far more often and far closer "to the main arena of democratic politics" (p.6) than could have been intended for Hamilton's "least dangerous" branch.

Admirably clear about what he hopes to accomplish in the book's six chapters, Kozlowski starts by bringing together in Chapter 1 the various strands of what he calls the "Imperial Judiciary thesis." After establishing (by reference to the work of Mark Tushnet) that distrust-or worse-of the judiciary is not confined to one side of the political spectrum, he proceeds to explore why such antipathy has become a staple of the American right. The villains in this account are not the members of the Warren Court, which attracted its share of academic criticism from all sides, but the Burger Court, which failed to wage the counter-revolution expected by conservatives, and, more recently, Justices nominated by Republican Presidents who proved faithless to the values they were assumed to hold when confirmed. As a result, according to Kozlowski, "Imperial Judiciary theorists ... have come to see the problem as one of institutional transformation," with courts having "become unaccountable and, consequently, arrogant policy-making entities that are incompatible with the functioning of democracy" (p.19).

In the remainder of the chapter, the author discusses various recurrent themes in the critique, from the charge that the judiciary has usurped democratic politics by turning us into a society preoccupied with rights, to the charge that the judiciary is in the thrall of elite left-wing academics, to the charge that in eschewing originalism judges choose not to interpret the Constitution but to make it up to suit their preferences. Kozlowski notes problems and inconsistencies with each of these charges, including the failure of the right to acknowledge Congress' role in the creation of rights, the improbability of the elite academic thralldom strain in light of numerous Supreme Court decisions of recent years that are anathema to the left, and all of the problems of originalism, particularly when only selectively employed-as by Justice Scalia, who, more often than any other purveyor of the Imperial Judiciary thesis, draws the author from his preferred position of relative objectivity.

In Chapter 2, Kozlowski explores the framing and ratification of the Constitution (and the Bill of Rights) for evidence bearing on the charge that the judiciary has departed from the modest role envisioned for it by the Founding Fathers. Deploying the recent work of historians effectively, he reminds us of the fear of legislative tyranny on the part of Madison and others, and of their belief in the importance of an independent judiciary not just to ensure fidelity to the Constitution but as a bulwark against unjust laws - to prevent oppression of the minority (those with property) by the majority (those without). Although the author here demonstrates his training as a lawyer, and might be thought to suggest that there should have been no debate about judicial review, he does eventually make clear that his point is "that the meaning of the Constitution's terms has been contested right from the beginning" and that "[i]t is a myth to assert that, in some pre-Warren Court golden age, something like unanimity regarding those terms, based upon a shared understanding of the framers' intent, ever existed" (p.75).

Kozlowski turns in his third chapter to a rebuttal of the charge that the courts have wielded greater power, or wielded power with greater effect, in the past fifty years than previously in our history, with DRED SCOTT v. SANDFORD (1857) being representative of what happened when courts exceeded their proper role. Only one of the author's "broad instances of judicial dynamism" - the judicial gutting of the Civil War Amendments - seems to me effective for this purpose. The other two -  use by state courts of their common law powers to shape an economic order in the first half of the nineteenth century, and the active and enthusiastic involvement of the courts on the side of management in its struggle with labor unions in the early twentieth century - are more problematic. To be sure, all of the author's examples (and many others, see Purcell (2000)) make the point that "[w]ho wears black robes has always mattered greatly in this country" (p.116).  But it is doubtful that one who is concerned about alleged usurpation of democratic politics should rely on exercises of judicial power that are amenable to legislative override. In addition, by neglecting the struggles for judicial review and judicial supremacy in the nineteenth century, the author may appear to (although he clearly does not) have a view of history as monochromatic as that which he quite properly criticizes.

One strand of the Imperial Judiciary thesis decries our alleged preoccupation with rights and links today's judiciary to a left/liberal agenda to impose by court fiat what cannot be secured through democratic means. In his fourth chapter Kozlowski reminds readers how grievously under-enforced most non-property constitutional rights were until quite recently, how far we are today from the affirmative welfare rights of other liberal democracies, and how fragile state constitutional rights are-because most state court judges must at some point stand for election and because many state constitutions can be amended with relative ease. He then turns to the rights revolution of the Warren Court, arguing that some of the most radical decisions of that Court - those requiring legislative reapportionment and protecting speech - cannot properly be linked to, and do not favor, any particular ideology, while those decisions that can fairly be linked to left/liberal preferences - decisions on behalf of the poor and criminal defendants - started to erode before the ink was dry.                                                                                                                

Kozlowski's fifth chapter, in which he seeks both to undermine the Imperial Judiciary thesis where it lives - ROE v. WADE (1973) - and to demonstrate the inconsistency of those adherents who attack ROE on originalist grounds at the same time as they celebrate BUCKLEY v. VALEO (1976), seems to me one of his least successful. The author is persuasive in arguing that there was an active pro-life movement before the Court's 1973 decision and that ROE did not put an end to democratic politics concerning abortion. And he is surely correct in observing that for some who participate in the abortion wars compromise is impossible. It is not clear, however, exactly what else he is arguing about either the claims of Imperial Judiciary critics or about the actual characteristics of the pre-ROE legislative landscape. Moreover, no further demonstration of the inconsistencies of originalists was necessary, and it is hard to escape the feeling that BUCKLEY figures in this book because of the author's interest in the constitutional law of campaign finance.

In his final chapter and the Conclusion that follows, Kozlowski returns to many of the themes of his critique of the Imperial Judiciary thesis to support the arguments that independent courts are a useful, if not a necessary, part of the American polity, embedded in politics and subject to numerous democratic checks.  Thus, Congress has relied on the judiciary to police  administrative agencies, for the supposed excesses of delegation to which, decried by many who espouse the Imperial Judiciary thesis, the remedy lies in Congress. And, again, many of the rights unpopular with conservatives arose (or became effective) not because of judicial but of legislative "activism." Having acknowledged the practical unavailability of most of the blunt instruments for disciplining judicial independence (e.g., court or jurisdiction stripping, impeachment), the author argues that "Imperial Judiciary theorists ... tend to discount the potential for the strategic use of federal court appointments to decisively influence the course of jurisprudence" (pp.192-93). I would have thought that it is precisely the impotence of those other tools that, in part, has made federal judicial appointments (and not just to the Supreme Court) such a battleground in recent years (Geyh, 2003).  Moreover, the priority that the current administration gives to ideology (in the strong sense) and to the age of nominees renders somewhat less comforting the view of many political scientists, echoed by Kozlowski, that the courts never stray too far, for too long, from the values of those in the political branches. Withal, his brief account of recent excrescences in state judicial elections, and of the dangers to independence that such selection systems portend, is an effective lead in to his conclusion. Institutional capacity to check the oppression of minorities and individuals by the majority, he believes, requires judicial review and the ability to moderate unjust laws, which in turn require adjudicators who, while accountable, are "insulated from continual pressure to please a majority of whomever their constituents might be" (p.219).

Although very little in this book will come as a surprise to those who study courts from a political perspective, and although there exist more thorough and sophisticated treatments of every aspect of the landscape Kozlowski covers, he has performed a valuable service, for scholars and interested citizens alike, both in collecting in one place the various stands of the Imperial Judiciary thesis and in treating it seriously. It is too easy (although often entirely fair) to dismiss arguments that seek to blame society's ills on the courts as insincere political posturing. We do so at our peril. Kozlowski effectively demonstrates that courts have far less power to operate as free agents than many believe. The challenge is to find ways to ensure a measure of accountability that do not yield the excesses that were of concern to (some of) the Founding Fathers.  

REFERENCES:

Geyh, Charles G.  2003. "Judicial Independence, Judicial Accountability, and the Role of Congressional Norms in Congressional Regulation of the Courts."  78 INDIANA LAW REVIEW 153-221.    

Purcell, Jr., Edward A. 2000. BRANDEIS AND THE PROGRESSIVE CONSTITUTION: ERIE, THE JUDICIAL POWER, AND THE POLITICS OF THE FEDERAL COURTS IN TWENTIETH CENTURY AMERICA. New Haven. Yale University Press.

CASE REFERENCES:

BUCKLEY v.VALEO, 424 U.S. 1 (1976).

DRED SCOTT v. SANDFORD, 60 U.S. 393 (1857).

ROE v.WADE, 410 U.S. 113 (1973).

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Copyright 2004 by the author, Stephen B. Burbank.