That Eminent Tribunal:Judicial Supremacy and the Constitution.

Vol. 14 No.12 (December 2004), pp.941-945

THAT EMINENT TRIBUNAL: JUDICIAL SUPREMACY AND THE CONSTITUTION, by Christopher Wolfe (ed). Princeton, NJ: Princeton University Press, 2004. 256pp. Cloth $55.00 / £35.95. ISBN: 0-691-11667-9. Paper. $19.95 / £12.95. ISBN: 0-691-11667-9.

Reviewed by Kenneth Ward, Department of Political Science, Texas State University. Email: KW12@txstate.edu .

THAT EMINENT TRIBUNAL is a significant contribution to an important discussion in constitutional theory, the debate about judicial supremacy. Christopher Wolfe has collected essays from eleven prominent scholars, who challenge the wisdom of a Supreme Court with final authority to determine the meaning of the Constitution. Taken as a whole, the book suggests the need to reorient the debate. Rather than focus on finality, the question of who should resolve our differences about the meaning of the Constitution, we should examine how well competing institutional structures manage ongoing disagreements.

While we can trace the debate about judicial supremacy back to the early years of the republic, it is only in the last few decades that the Court could claim such authority with so little resistance. The argument for supremacy seems to take on greater urgency in times of deep social divisions, and its ascendancy might well be attributable to the hope that the Court would resolve the combustible social issues that endanger the stability of an increasingly divided country (Kramer 2004, 184-89, 234-36). Indeed, the joint opinion that decided PLANNED PARENTHOOD OF PENNSYLVANIA v. CASEY practically asserts judicial supremacy in the cause of upholding abortion rights, claiming the Court’s authority depends on people’s willingness to accept its resolution of such highly controversial issues. (CASEY, 2814-16).

It is not surprising, then, that CASEY dominates Wolfe’s volume. The book succeeds, however, by reformulating the question of judicial authority. CASEY emphasizes the need for finality in constitutional decision-making, and thus encourages theorists to ask whether judges make better decisions than legislators and whether their decisions will foster political stability. Wolfe and his contributors look beyond the immediate controversies likely to find their way to the Court’s docket and consider the costs incurred when political institutions impose a final decision notwithstanding our heated disagreements about fundamental issues.

CASEY is the subject of the first three essays. Gerard Bradley attacks the opinion, suggesting that the Court has both made itself the arbiter of constitutional principle and simultaneously undermined the epistemological foundations that would allow us to consider its determinations of principle as anything but an assertion of raw power. Robert Nagel situates CASEY in a broader cultural context. He contends that the claim of supremacy is a response to social divisions that have [*942] been exacerbated by the Court’s centralization of important policy decisions and that the decision might in fact sow more dissensus. Michael Zuckert’s essay responds to Bradley’s charge that CASEY rests on a contradiction and to Nagel’s implication that it lacks a foundation in principle. He concludes, however, that the principle the Court asserts is too open-ended to address adequately the political, constitutional and moral issues implicated by the abortion controversy.

Hadley Arkes considers CASEY as a linchpin in a line of cases in which judges have detached themselves from the premises of jurisprudence, by removing a class of persons from law’s protection. In so doing, these decisions allow positive law to define what a human being is. But such a conception of law is at odds with the ideal of government by consent, because the ethical weight of consent depends on a conception of a human being whose reality is prior to law. These decisions, according to this view, undermine the foundation of their authority.

The CASEY decision resonates even as the contributors move beyond the substance of its argument. Steven D. Smith associates the rise of judicial supremacy with a ‘culture of rationalism’ inculcated through the legal academy. This culture emphasizes the need for government to ground its actions in good reasons, but disparages tradition, faith and intuition as bases for such reasons. Smith believes that such a circumscribed conception of the sources of knowledge that might inform reasoned decisions breeds arrogance, arrogance that would explain why seemingly modest judges have acted imperiously in CASEY, as well as other cases. Michael McConnell, in turn, questions why we would accept the Court’s pretension to expansive authority to determine what the Constitution means. He attributes such tolerance to our indoctrination in a celebratory history of the Supreme Court. McConnell presents an alternate story—he recalls the time when judicial holdings were more readily challenged and identifies a legacy of mistakes that suggest the importance of such challenges.

Jack Wade Nowlin also assesses judicial authority based on the likelihood that judges will decide cases correctly, but, in contrast to McConnell, he considers the structural conditions that influence how judges exercise their authority. He uses CASEY to illustrate how aspects of the judicial process, such as the primacy of legal interpretation and practical political constraints on judicial power, impede moral reasoning by judges. Nowlin contends that moral reasoning in legal decisions tends to be understated, incompletely theorized and distorted by the argumentative force of legal materials, and therefore rejects arguments of constitutional theorists who claim that an expansive judicial power is justified by judges’ having special insight on moral issues.

Christopher Wolfe and Keith Whittington also emphasize constitutional structure. Assessing judicial decisions in light of a broader understanding of the role of courts within republican government, they consider the question of which institution should resolve controversies without regard to how particular controversies should be resolved. On [*943] the one hand, Wolfe contends that recent examples of conservative activism resemble their liberal analogs in that the Court interprets ambiguous constitutional provisions in a manner that substitutes the Justices’ will for that expressed by elected institutions. Whittington, on the other hand, distinguishes different kinds of activism. He contends that CASEY is different from the Rehnquist Court’s activism in the area of federalism, because it stops political debate and legislative action as opposed to redirecting them into a different channel. The conclusions of Wolfe and Whittington follow from differences in their appeals to republican government. Wolfe asks whether judges have interpreted the Constitution in a manner that is consistent with the American form of republican government. Whittington brackets all questions of how to interpret the Constitution, in order to suggest that decisions like CASEY are in tension with democratic politics in a way that is not true of the Court’s federalism decisions.

Both, however, point to a deeper problem that should be at the heart of our debates about judicial supremacy—namely, how should a system of constitutional government manage citizens’ disagreements about the fundamental values that govern them. While Wolfe respects what he believes to be the Constitution’s answer to this question, Whittington leaves it as an open question. He suggests that we better respect the diverse views citizens hold by allowing elected institutions to decide the controversies that arise from such disagreements. Rather than ask how we should resolve particular controversies, he focuses on disagreement itself as a central problem of republican government.

We see a similar shift of emphasis in Smith and McConnell. Smith suggests that government should respect citizens whose perspectives are not likely to influence the Court, when he criticizes judicial decisions that disparage modes of living that do not satisfy the culturally ascendant conception of reason. And McConnell argues that legislatures are more likely than courts to correct mistaken decisions.

Consider as well Nagel’s analysis of CASEY. The Court must respond to the discontent ROE sowed by insisting on a single answer to the abortion controversy; it displaced local institutions and the wide variety of constituencies they represent. But CASEY, according to Nagel, only reinforces ROE’s original mistake. Rather than believe stability a virtue of the Court’s authority to determine the meaning of the Constitution, he expects to suffer the corresponding vice. Nagel recognizes that disagreements over issues like abortion survive the resolutions that institutions impose and that we should not confuse finality for stability. In a similar vein, George Liebmann attempts to stall what he describes as the Court’s interference in society’s subordinate and mediating institutions. He calls for a return to an older idea of republican government that would save local discretion from a centralized authority likely to be capricious and arbitrary.

Finally, Jeremy Waldron also assesses judicial review in light of the recognition that disagreement is the central problem of republican government. He [*944] illustrates the difficulty of reconciling judicial review and republican government, by identifying flaws in three attempts at reconciliation: (1) that judicial review is in accord with people’s own views of self-government; (2) that judicial review promotes republican values by improving debate on matters of principle; and (3) that judicial review sustains the processes of republican government. These attempts fail, according to Waldron, because they underestimate the tension between republican values and other commitments. For example, even if we were to accept that judicial review is consistent with the will of the people, it would not make government by judicial guardian a form of republican self-government. Nor should we mistake judicial decisions that promote ideals of how people should debate issues or ideals of how institutions should go about resolving such issues with citizens actually governing themselves.

Waldron believes that proponents of judicial review are afraid to risk a republican solution to the problem of disagreement. To pursue republican government, we must reckon with the possibility that our fellow citizens do not share our moral convictions and consequently that our government will sometimes diverge from what we as individuals consider important principles of justice. He joins the other contributors who suggest that the defenders of judicial supremacy place too much emphasis on resolving controversies and not enough on the conditions of disagreement that fuel them.

The fact of disagreement, however, is not itself a reason to conclude that judicial supremacy has no place in American constitutionalism. Indeed, the risks Waldron identifies follow when elected institutions rather than courts make final decisions. We are still left with a question as to which institution will make better decisions. We can also treat the question as one of procedural justice, as Waldron (1999) does in a longer work, and ask which institution should resolve disagreements of this type.

But in pursuing the latter course, we should recognize the likelihood that disagreement will continue, perhaps even exacerbated by the disappointment of citizens whose moral convictions are at odds with the majority of their peers. To take such disagreement seriously, constitutional theorists must change their approach to both judicial supremacy and the broader question of judicial authority. Because many controversies will withstand the attempts of our institutions to resolve them, we should consider competing institutional arrangements in light of the influence they have on citizens’ ability to pursue their disagreements in the future. We should care, for example, whether McConnell is correct in suggesting that judicial decisions are more resistant to change than decisions by elected institutions. Does such resilience affect citizens’ attitudes about their government, whether they believe their interests and values have been considered seriously? And if so, is judicial review a source of stability, as some proponents of judicial supremacy suggest, or is Nagel correct that in conditions of disagreement, finality only fuels the passions of those disappointed by the Court’s decision and thus raises the stakes for future conflicts? [*945]

As judicial supremacy becomes increasingly ingrained in the political and legal culture, challenges such as those posed by THAT EMINENT TRIBUNAL become more important. Its significance lies as much in the questions it suggests as in the particular criticisms it raises.

REFERENCES:

Larry Kramer. 2004. THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW. New York: Oxford University Press.

Waldron, Jeremy. 1999. LAW AND DISAGREEMENT. New York: Oxford University Press.

CASE REFERENCES:

PLANNED PARENTHOOD OF PENNSYLVANIA v. CASEY, 112 S.CT. 2791 (1992).

ROE v. WADE, 410 US 113 (1973).

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