Vol. 1 No. 1 (March, 1991) pp. 22-23

INTERPRETING THE CONSTITUTION: THE SUPREME COURT AND THE PROCESS OF ADJUDICATION by Harry H. Wellington. New Haven & London: Yale University Press, 1990. 196 pp. Cloth $22.50.

Reviewed by Laura R. Woliver, The University of South Carolina.

In a readable and engaging style, Wellington discusses the role of judicial review by an unelected minority in a majoritar- ian democracy and explains the mostly positive role the United States Supreme Court has played in American politics. Wellington distinguishes between partisans of judicial restraint (or origin- alists) and judicial activism with contemporary examples from speeches by past U. S. Attorney Generals, academic scholarship, judicial opinions, and the testimony of Supreme Court nominees. Wellington makes a convincing case for rejecting the original intent or originalist position and adopting a more moderate stance which accepts the value of judicial review in a changing society.

The book displays the flaws in the original intent position of jurists like Robert H. Bork. Wellington marshals compelling evidence to prove his case against reliance on original intent for constitutional interpretation. He also reviews substantive due process and its dire consequences as seen in LOCHNER V. NEW YORK (1905). As LOCHNER displays, it is important for judges to avoid inserting personal value judgements into their decisions.

Wellington supports the common law method of Constitutional interpretation and shows how this approach can represent public sentiment and lead to wise policy choices in judicial decisions. This is partially achieved when litigators and judges recognize commonly held opinions and public morality. "The common law method of constitutional adjudication ... better explains the Supreme Court's role in American government than either original- ism or Justice Stone's footnote in CAROLENE PRODUCTS does. Normatively," Wellington continues, "it has the advantage of building change into law, change that takes into account contem- porary substantive values as well as participational values" (p. 127). At the same time, he points out, the Supreme Court has a hand in shaping these public values.

Wellington accepts the notion that federal judges, especial- ly those on the Supreme Court, are like neutral, disinterested referees. He dismisses those who assert the potential biases of judges and the law itself. These pieces of his position could have used a little more elaboration.

Wellington explains how judicial decisions must be "digest- ible" to the public. He defends all attempts, short of violence, to lobby, cajole, educate, or pressure the Supreme Court to amend decisions or overturn them all together. These all fit into the process of adjudication and make it more likely that the courts will make wise decisions. In fact, other institutions, and groups within the public, he maintains, sometimes have

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an obligation to contest Court interpretations of the Constitu- tion and the Court's authoritativeness. The ensuing noisy dialogue "helps fit the regulation that results from adjudication into the democratic ideology that we profess as a nation" (p. xii).

Wellington uses the abortion decision in ROE V. WADE (1973) as a current example of an "indigestible", highly contentious Supreme Court decision. Based on the basic principle of treating like cases alike, Wellington shows how the ROE decision was basically a correct position of the Court. One positive role the Court performs in our society is bringing our laws up-to-date with prevailing social norms. The Court did this in GRISWOLD V. CONNECTICUT (1965), striking down an old fashioned and largely unenforced birth control law and doing so in the realm of marital privacy. The abortion cases have been extensions of this work of the Court. Public opinion polls show a basic majoritarian agreement with the Court's position on abortion. Wellington describes commonly held attitudes in our society about the moral distinctions between fetuses, infants, and women and how these positions can be used to construct a public morality helpful to judges when considering abortion cases. "Put another way," Wellington explains, "for the Court and the lawyers who argue before it, reasoning from these commonly held attitudes should be an important method for interpreting the values -- the public morality -- that are a source of law in elaborating the term 'liberty' in the Fourteenth Amendment of the Constitution" (p. 107).

The active minority opposed to ROE, Wellington shows, have a right to challenge the decision and act within the democratic framework to try to change it. When anti-Roe forces engage in their oppositional politics, Wellington explains, they are engaging in a time honored tradition by segments of the public that disagree with particular Court cases. The behavior of groups that bomb abortion clinics, though, are outside this democratic tradition.

The conversational style, relative absence of academic jargon, contemporary and challenging issues raised in INTERPRET- ING THE CONSTITUTION make it interesting and useful to lay readers as well as the scholarly community. It is a good intro- duction to the place of the Supreme Court in interpreting the Constitution and the justifications, yet drawbacks, for a nondem- ocratic institution in our polity.