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A really restrained judiciary

Attacking judicial activism isn't just for conservatives anymore

SUPREME COURT Justice Antonin Scalia is one of the great bogeymen of our time. According to his critics -- and they are legion -- he wants to outlaw abortion, sodomy, and affirmative action; deny poor criminal suspects access to legal counsel; execute young and mentally disabled felons; dismantle the wall between church and state; and generally allow the majority to run roughshod over the rights of minorities.

A proud foe of judicial overreach, Scalia decries the broad powers that the Supreme Court arrogates to itself, insisting that no court is qualified to resolve what are essentially moral questions. "What I am questioning," he told an audience at Harvard's Kennedy School of Government earlier this month, "is the propriety -- indeed the sanity -- of having value-laden decisions such as these made for the entire society . . . by judges," rather than by the elected representatives of the people.

But these days, judicial restraint itself is hardly a radical -- or indeed a conservative -- idea. Many of the scholars today who argue that the Supreme Court's wings should be clipped are unapologetic liberals like Yale Law School's Bruce Ackerman and Akhil Reed Amar and the University of Virginia's Michael Klarman. Few would find much to praise in Scalia's reading of the Constitution or many of the decisions he draws from it, but they all share his stated mistrust of the court's power and reach. They believe, as Stanford Law School dean Larry Kramer has written, that "The Founding generation understood, in a way our generation seems to have forgotten, that judicial review must be contained or we lose the essence of self-government."

What is radical, though, is the position a few of these jurists have taken: challenging the idea of judicial review itself.

Since Chief Justice John Marshall, in Marbury v. Madison (1803), established the right of an independent judiciary to pass judgment on the constitutionality of the actions of the legislature and the executive, few institutions have been seen as more vital to American democracy. But, like some thinkers on the right -- including Robert Bork, who has argued that Congress should have the right to overrule Supreme Court decisions -- a few liberal scholars have begun to attack the institution as undemocratic and capricious. They also contend that our understanding of the High Court as an engine of progressive change is largely mistaken.

As the court starts a new session and as we prepare to elect a president who may appoint as many as four justices, these thinkers challenge the idea that modern liberalism is helped more than hindered by making the Supreme Court the sole interpreter of the Constitution.

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Jeremy Waldron of Columbia Law School, a widely admired philosopher and legal scholar, is, as he said in a recent interview, "a root-and-branch opponent of judicial review." Whereas Scalia insists only that the court not meddle in "value-laden questions" like abortion or gay rights, Waldron declares that, in effect, there is no significant political dispute that isn't somehow value-laden. People disagree, he says, over even the most basic rights: what they are, what they mean, and how they should be balanced against one another.

These disagreements, Waldron says, "are not between tyrants and good people. . .. You will find them among the people at large, among their legislators. You'll find similar disagreements among law professors, and . . . among judges." That's why even the Supreme Court has to decide things by a vote. And "if you're going to be counting heads," Waldron maintains, "then democratic principles require that you don't just count nine particularly wise people but count heads among representatives -- among, in effect, everybody."

Since Marbury, the independent judiciary has been relied upon as a check against legislative abuses. But fears about the tyranny of the majority, as Waldron sees it, are overplayed. Legislative debates are unfairly portrayed as an unholy combination of pork, horsetrading, and grandstanding. In fact, he argues, they can be real matters of substance. He points to past public discussions in Britain over decriminalizing homosexuality, abolishing the death penalty, and decriminalizing abortion. Because Britain doesn't have a written constitution, the issues had to go through the Parliament. "Reading those Parliamentary debates today, they're terrific," he says. "They're substantive and eloquent and articulate."

Mark Tushnet, a professor at the Georgetown University Law Center and another prominent judicial review skeptic, has argued that judicial review has a pernicious effect on the legislative process. "Political leaders often find judicial review a convenient way to hand off hard decisions to someone else," he wrote in his 1999 book "Taking the Constitution Away from the Courts." Legislators feel free to pass irresponsible legislation because they know the court will clean up the constitutional mess for them -- a phenomenon he dubs "judicial overhang."

Plenty of thinkers find these arguments problematic. Cass R. Sunstein, a professor at the University of Chicago law school and a leading constitutional scholar, shares Waldron's and Tushnet's liberal politics. He also believes that the Supreme Court should limit its footprint in its decisions. But the frontal attack on judicial review, he argues, is weak. "I don't think that the ideal of democracy by itself cuts hard against judicial review," he says. "It argues against certain forms of judicial review, but not judicial review as such."

Sunstein takes issue in particular with Waldron's assertion that all rights involve questions over which reasonable people can disagree. Certain rights -- free speech or the principle of "one person, one vote," for example -- are required by democracy. Judicial review, he argues, should be judged not on the basis of whether it is itself a democratic process but whether it creates or protects those fundamental democratic rights.

Both Waldron and Tushnet counter that rights may seem fundamental in theory, but things look very different in the real world. "In order to eliminate disagreement," Waldron says, "you have to state a proposition very, very abstractly." Everyone may agree on the necessity of free speech and equal representation, but not on what those terms actually mean in practice.

Tushnet offers the example of legislative redistricting. The naked power politics and laughable distortions of gerrymandered districts are often offered as proof of a legislature's inability to police itself, and in several states the courts have stepped in to resolve disputes between the political parties. But Tushnet points out that even here there is no true right answer. "In one view of democracy," he says, " `one person one vote' is simply what it means. In another view, reapportionment should make sure different interests are fairly represented. It's just a disagreement, not a matter of right and wrong."

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And then there's the matter of the Supreme Court's record. We tend to celebrate the court's role in reversing discriminatory and oppressive laws. But in Tushnet's view, that's because we focus on the liberal, activist Warren Court of the 1950s and '60s, instead of, say, the years between 1880 and 1935, when state and federal supreme courts struck down over 170 pieces of labor legislation.

Waldron agrees. "We think judicial review is wonderful for liberals," he says, "but it wasn't for two generations."

Moreover, the court has notoriously failed to protect civil liberties at critical times -- in the Dred Scott Case (1857), which declared slaves noncitizens; in Schenck v. United States (1919), where a unanimous court ruled that it was a crime to distribute leaflets protesting the draft; or in Korematsu v. United States (1944), which upheld the internment of Japanese-Americans during World War II. Confronted by a rampaging Sen. Joseph McCarthy, the Warren Court's response was, in Tushnet's words, "weak, to put it generously." Instead, he points out, it was the Senate that finally dealt with McCarthy, through censure.

In the end, though, neither Tushnet nor Waldron attack the idea that there should be a set of principles and rights that a polity measure itself against. Tushnet proposes a "populist constitutional law" where legislatures, not courts, interpret the Constitution. Waldron points out approvingly that, in his native New Zealand, that system already exists. As he sees it, that's only fair.

"With judicial review," says Waldron, "there's a whole bunch of people whose views get locked out as unconstitutional. But in this country people fought long and hard for the vote because they wanted to participate on equal terms in important matters of principle, not just tax laws."

Drake Bennett is the staff writer for Ideas. 

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