On Judicial Review
The Spring 2005 issue of Dissent featured a forceful article by Mark Tushnet, "Democracy versus Judicial Review," which proposed an End Judicial Review Amendment (EJRA) to the U.S. Constitution. It would read, "Except as authorized by Congress, no court of the United States or any individual state shall have thepower to review the constitutionality of statues enacted by Congress or by state legislatures." Two leading legal philosophers argue with Tushnet and he replies--Eds.
Sounding out just as the courts, already conservative, appear ready to take a turn still further to the right, the clarion call to “take the Constitution away from the Court” strikes a defensive note—one nicely suiting the tune of right-wing critics of the federal bench.
Compounding the irony, the right’s indictment against justices appointed by presidents Richard Nixon, Ronald Reagan, and the first George Bush is capped by the complaint that they dare search the World Wide Web and even at times cite the work of foreign courts! How strange to castigate our judges for paying attention to the wider world at the very point in world history when nation after nation, having pondered the American experience and studied the alternatives, comes to the sober conclusion that judges protected from political reprisal for unpopular rulings and charged with enforcing the nation’s fundamental law are indispensable to the healthy functioning of a constitutional democracy.
Accepting that conclusion requires no more “distrust of politics and of the people,” in Tushnet’s words, than “We, the People” had when we ratified the words “We . . . do ordain and establish this Constitution for the United States of America.” To live by a written constitution is already to recognize that, although the people are to govern themselves (facilitated by a framework that itself at times demands judicial maintenance and even repair), they must do so subject to commitments that attempt to protect basic human rights. These include the rights of distinct minorities that might otherwise be too easily dismissed or subordinated to the pressing interests of those in power. Abandon that, and we abandon the rule of law that is among the defining elements of the “democracy” we preach around the globe.
However counter-intuitive it may seem, some self-identified “liberals” and other self-proclaimed “progressives” have nonetheless called for ending judicial review altogether. Others, recognizing that letting the fifty states and thousands of municipalities govern according to their lights would all but delete the “United” from “The United States of America,” have conceded the necessity of Supreme Court review of the constitutionality of all state and local action—but not of action by the national government. Yet it is in controversies over state and local laws that the Court’s most controversial rulings have been handed down: think of school prayer, abortion, racial integration, sodomy, the Pledge of Allegiance. Are we to countenance a legal system whose highest court may prevent the states from imposing a particular obstacle to first-term abortions because it unduly burdens the rights of women to choose whether or not to remain pregnant, only to discover that the Court—upon “finding” that every fetus is a person from the moment of conception and is entitled to the use of its mother’s body for the ensuing nine months—is powerless to protect those very rights from national legislation imposing the identical obstacle?
Whatever their position on judicial review of legislation, few of those who urge taking the Constitution away from the Court seem prepared to live with the specter of a judicially unchecked executive. They recall how often American presidents have acted in ways virtually all now regard as unconstitutional—from Harry Truman’s unilateral seizure of the steel mills to Nixon’s effort to stop publication of the Pentagon Papers to the current president’s attempt to lock up American citizens as “enemy combatants” in the war on global terrorism and all but throw away the key. It’s hard to imagine a different result whenever the president is armed with a virtual blank check in the form of a congressional statute delegating him broad discretion. Yet Tushnet’s proposed “End Judicial Review Amendment” would mandate exactly that. When Congress flagrantly violates the separation of powers, rides roughshod over the sovereignty of the states, or decides unilaterally that a particular individual should be kept in a persistent vegetative state (against what the state courts have determined was her wish to end such intrusion), the amendment would compel the Court to uphold that naked exercise of lawless power simply because it was done by Congress, in the name of “the people.”
To argue that “democracy” mandates such abdication to the will of a momentary majority of a representative assembly is to confuse constitutional democracy under the rule of law with mob rule. When the Supreme Court enforces what it understands the Constitution to mean, it is enforcing what “the People” solemnly imposed upon themselves and their “Posterity” in the very act of ratifying or amending that Constitution. That the Court’s understanding might sometimes differ from Tushnet’s or Representative Tom DeLay’s or mine hardly demonstrates that the status quo entails autocratic rule by the subjective preferences of nine people who happen to be wearing robes. The professional and cultural pressures inevitably shaping judicial thought, coupled with the highly political process that puts the justices in power, ensures that, if anything, their reading of the Constitution might hew too close to that of a contemporary majority. And if their reading strays too far, the process of constitutional amendment, while arduous, remains available.
Why, then, the push for so radical a deconstruction of our constitutional order? Surely its left-leaning proponents cannot believe that the case for judicial review depends on the fanciful proposition that life-tenured judges charged with enforcing a written constitution can serve successfully as the primary vehicles for progressive social change. This would be an especially implausible role when the changes needed entail redistributing wealth or otherwise reordering economic life. Not even so basic a landmark as Brown v. Board of Education made the earth move, any more than Roe v. Wade ended the subordination of women or Lawrence v. Texas will end discrimination against gay men and lesbians. That some scholars may have expected more from such rulings than a nudge in the direction of social justice and a much-needed reminder about the meaning of equality and liberty, or might have assumed the judiciary could take steps this bold on a regular basis, shows only that some academics are naïve about the difficult dynamics of social change. It does not follow that we should strip the Court of its power to enforce basic constitutional commitments that no political branch or arm of government can be counted on to honor when they stand in the way of something urgently desired.
That it was a civil war and decades of political struggle that made possible most of what has been achieved in integrating the races, or that it was a century of political mobilization that made progress toward women’s equality possible, or that it was a similar if briefer struggle that lay behind the increasing acceptance of gay men and lesbians, cannot gainsay the importance to each of these causes of the Supreme Court decisions that gave them constitutional legitimacy. Saying, with Tushnet, that “Right now, Americans who benefited from Brown get nothing at all from the Supreme Court,” underestimates the degree to which the legal machinery that today limits the ravages of unchecked racism stands on, and depends upon, the foundation Brown furnished. And saying, with Tushnet, that “anti-sodomy laws were enforced only sporadically before Lawrence” misses the point that they were, as the Court recognized, invoked (even when not directly “enforced”) as a foundation for treating sexually active gay men and lesbians as practicing criminals properly relegated to second-class citizenship. So, too, saying that “judicial review simply puts legislated programs of affirmative action at risk” fails to take into account the importance of a Supreme Court decision that rejects a claim of unconstitutionality and thereby helps to legitimate deeply controversial but badly needed government action.
Indeed, it’s hard to imagine how a political and legal regime could function with robust judicial review of executive action, including action that amounts to the application of laws to particular individuals and cases but without such review, except at the sufferance of Congress, of laws as such. If Congress, for example, enacts measures treating the president, or the fifty states, as mere agents of the central government, akin to mid-level agency bureaucrats, is the resistance of the president or of the fifty state legislatures to be struck down under the Supremacy Clause for conflict with congressional commands that themselves may not be reviewed? Talk about the sound of one hand clapping!
If the proposed disarming of the judiciary is driven by a wish to see more of the electorate engage in dialogue about constitutional questions, I share this goal. But my hunch is that muffling the Supreme Court’s constitutional voice would in the end yield less, not more, public deliberation about what the Constitution means by the “equal protection of the laws,” the “free exercise of religion,” or the “establishment of religion.” Division about such concepts within as well as outside the Court says reasonable people seem to differ. But it doesn’t follow that polling the 535 members of Congress is preferable to reasoning about our differences in the language of constitutional principle.
If my first reaction was applause, my second reaction was defensive. I started thinking of all the things that partisans of judicial review were likely to say in response to Tushnet. American law professors are deeply invested in judicial review—many of them served as clerks on the Supreme Court, and some of them dream (most of them in vain) of becoming justices themselves. They have developed standard responses when someone criticizes this practice, with which they identify so strongly.
One thing that’s often said is that courts give reasons for their decisions, whereas legislatures do not, and this is a sign that courts, unlike legislatures, take seriously the issues of rights that they address. With courts, they say, we are never just faced with a bare decision about rights, coercively imposed; we have judicial reasoning, which helps bring constitutional rights into focus for us, and it would be a pity to give that up.
I’m not convinced. If you read what passes for “reasoning” in Supreme Court decisions, most of it is not about issues of rights at all. It’s about legal history, or precedent, or jurisdiction, or theories of interpretation, or other legalisms. Judges know that their role is problematic. Thus they cling to the texts that authorize their interventions and laboriously debate their interpretation with special reference to theories like originalism and constructivism to show that they are legally entitled to do what they are doing. They may concoct analogies between what they are doing in one case and the contortions they went through when they dealt with similar or not-so-similar matters in the past. And all the time, the real issues at stake get pushed to the margins of their reasoning. In the Supreme Court’s fifty-page opinion in Roe v. Wade (1973), for example, there are just two paragraphs dealing with the importance of the main issue at stake—the rights-status of the fetus. The rest is mostly taken up with showing the diversity of opinions on the matter. The result may be appealing, but the “reasoning” is threadbare.
By contrast, legislators do give reasons for their votes: the reasons are given in debate and they are published in the Congressional Record. Legislators may reason roughly by the standards of the Court’s polished prose, and there are hundreds of them, and they have constituents (ordinary people) to answer to, so it’s harder for law professors to keep track. For all their vices, though, legislators tend to go directly to the heart of the matter in their debates. I recently read through the House of Commons Second Reading debate on the liberalization of abortion law in the United Kingdom in 1966. (The British legalized abortion, prostitution, and homosexuality and abolished capital punishment, all by legislation, all without the assistance of the judiciary—or sometimes over its expressed opposition—in the 1960s.) The debate engaged pro-life Labour people and pro-choice Labour people, pro-life Conservatives and pro-choice Conservatives, talking through all questions that need to be addressed when abortion is being considered and debating them passionately but also thoroughly and honorably. The pro-choice faction eventually prevailed. Remarkably, the pro-life Members of Parliament (when they saw which way the vote was going) paid tribute to the respectfulness with which their views had been heard. (How many times have you ever heard pro-life advocates pay tribute to the respectfulness with which their positions were listened to by the Supreme Court in Roe v. Wade?) But that’s not the difference I want to emphasize. The key difference is that whereas the reasoning of the U.S. Supreme Court was mostly concerned with interpretation and doctrine, the British legislative debate focused on the issue of abortion itself—the status of the fetus; the predicament of pregnancy; the importance of freedom, choice, and privacy; the moral conflicts all this involves; pragmatic issues about law enforcement; health risks of back-alley abortions; and so on. That is what needs to be debated when society is deciding about abortion rights, and those are the issues that are given most time in the legislative debates and least time in judicial reasoning.
This may seem all very utopian. Notice, though, that I am talking about a real legislature and a real debate about an issue that was in its time no less divisive there than it is here. (If it has become less divisive there, it is precisely because of the way in which the decision was made.) Of course, real legislatures also sometimes act in panic-stricken or sectarian ways. But as Tushnet has emphasized, we mustn’t just compare courts as they are to American legislatures as they operate in the shadow of courts. We should compare courts as they are to legislatures as they realistically might be if they grew to become genuine deliberative forums, taking final responsibility for decisions on these issues, with those citizens who currently invest their political energies in litigation investing them instead in the democratic process.
My first reaction was applause; my second reaction was defensive. My third response is to quibble about details. Tushnet’s EJRA talks about ending judicial review—but “review” can mean different things. British courts can review parliamentary legislation. Their highest court recently found provisions of the Anti-Terrorism, Crime and Security Act incompatible with the rights laid down in the European Convention and the Human Rights Act. Now, the British courts can’t declare the anti-terrorist legislation unconstitutional: they can’t remove it from the statute book or decline to apply it to the case in front of them. But their review does have an effect. They can issue a Declaration of Incompatibility, and that can be used to authorize fast-track legislative procedures to rectify the problem. This is what we call weak judicial review. It leaves the ultimate decision to the representatives of the people in Parliament, but it uses courts to bring issues of right to the attention of the community. It may not always be easy for legislators to see what issues of rights are embedded in the legislative proposals brought before them; courts can help them see this, particularly if courts are not distracted by the issues I mentioned earlier about the legitimacy of their own decision making.
So I wonder whether Tushnet intends his EJRA proposal to preclude weak as well as strong judicial review. I know this is a quibble from the point of view of an argument put forward mainly as a provocation. But if we are ever to be serious about taking back the Constitution from the courts, would not this form of weak review offer a constitutional democracy perhaps the best of both worlds?
Weak-form judicial review is an interesting modern development in institutional design. If it worked as it should it might well alleviate the principled concerns democrats should have about strong judicial review. Congress could create a weak-form system under my proposed EJRA. Would it work, though?
Experiences in nations with weak-form systems are not entirely encouraging. Canada’s Charter of Rights contains a clause that allows its legislatures to make laws effective “notwithstanding” certain rights-guarantees in the Charter, with a five-year sunset period. The override has rarely been exercised, which might only show that, on reflection, Canada’s legislatures agree with the courts’ constitutional interpretations. Yet, one of the most prominent early defenders of the override—who, like Waldron, emphasized the contributions courts could make to a productive dialogue about fundamental values—now argues that Canada’s constitutionalism has reached the point where the notwithstanding clause should be replaced by strong judicial review. Similarly, New Zealand’s Bill of Rights, which simply says that courts should construe statutes to conform to constitutional guarantees if they can, may have become the basis for strong judicial review. Weak judicial review may not be a stable institution. Still, moving from what we now have to a weak-form system would help allay the concerns about principle and strategy that I discussed.
Laurence Tribe’s contributions to progressive constitutional adjudication, as a scholar and a litigator, cannot be underestimated. Yet, as Waldron’s comments suggest, Tribe may have become so invested in the institution of judicial review that he overlooks the forest for the trees. The form of that investment is his depiction of ordinary politics as consumed by “interests” rather than rights and as at least occasionally succumbing to mob rule rather than as deliberation over fundamental values. I agree with Waldron’s suggestion that this is not a fair account of politics—or at least of the politics surrounding questions of fundamental values. It is simply implausible to contend that the positions conservatives take on abortion or gay rights—or their position in the Terri Schiavo case—are driven by “interests” in any interesting sense.
The rhetoric of “interests” trades on a suspicion that pork-barrel politics too often prevails. Perhaps that is true on issues of economics and public expenditure. Yet, it is on exactly those issues that courts are mostly silent. Strong judicial review has not cured the disease of interest-driven politics, and it is not at all clear that the matters on which the courts have been most aggressive involve such politics rather than a politics driven by real differences about what our basic constitutional commitments are.
Tribe suggests that we need strong judicial review to address the problems that arise when minorities are systematically disadvantaged in politics. Once those minorities have the right to vote, though, many of the disadvantages disappear. The enfranchisement of African Americans in the South after the adoption of the Voting Rights Act of 1965, coupled with the political strength of African Americans in the urban North, has made politics at least as effective in promoting African American interests as the courts now are. I think that the nation continues to be inadequately responsive to questions of race and poverty, but the courts no less than legislatures are implicated in that failure.
I should observe that Tribe has indeed identified one real problem with my proposal. I argue that courts can invalidate executive actions raising questions about fundamental values, unless those actions are expressly authorized by Congress. But, Tribe asks, suppose the president takes the position—as the present administration once did, until its position was exposed to public view—that the Constitution authorizes the president to act even in the face of an express congressional prohibition. My proposal leaves that question to be resolved not by law but by politics, and I agree that this may not be entirely satisfactory. Still, I suspect that this precise problem will rarely arise (it hasn’t yet, even in the torture controversy), and I doubt that it makes sense to erect an elaborate institutional structure such as strong judicial review to deal with an important but, I think, unusual problem.
In the end, Tribe’s rhetoric of “interests” and “mob rule” confirms for me the accuracy of my assessment of the way in which both principle and strategy point to the need for progressives to abandon their attachment to strong judicial review. Only then might we be able to engage our co-citizens in the kind of productive dialogue about fundamental rights that Waldron, Tribe, and I agree is truly important.
Jeremy Waldron, who is University Professor in the School of Law at Columbia University, is the author of Law and Disagreement (Oxford University Press, 1999) and The Dignity of Legislation (Cambridge University Press, 2000).
Mark Tushnet, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center, is the author of A Court Divided: The Rehnquist Court and the Future of Constitutional Law (W.W. Norton, 2005) and is the editor of The Constitution in Wartime: Beyond Alarmism and Complacency (Duke University Press, 2005).
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