[The New Republic] [Image] [A journal of politics and the arts] [Home][TRB][Editorial][Cover Story][The Arts][TNR on TV] [Search TNR] AUGUST 16, 1999 ISSUE [Subscribe; just $39.99/year] TAKING CARE OF BUSINESS [Advertise in TNR] Appeal and Consent by Richard A. Posner [Subscriber services (change of address)] A review of Taking the Constitution Away from the Courts by [Image] Mark Tushnet American law is rich grazing land for sacred cows, and no parcel is more sacred than the power of the Supreme Court to invalidate federal statutes and state statutes and executive actions on the ground that the challenged law or action is in conflict with the Constitution. But this power of "judicial review," as constitutional lawyers like to call it, is now being questioned by a politically and methodologically diverse group of law professors and jurists, including Jack Balkin, Michael Klarman, Sanford L evinson, Richard Parker, Mark Tushnet, and (ex-judge and ex-law professor) Robert Bork. (Bork would not abolish the power of judicial review outright, but he would weaken it greatly by allowing Congress to override judicial decisions invalidating a federa l statute.) Tushnet has now presented a book-length defense of this interesting heresy. The book is a compilation of previously published and heavily revised articles, which is not the best format for presenting a single grand thesis; but it is still a va luable addition to the swelling chorus of "judicial review" skeptics. Sacred cows are to be kicked, but they rarely can be killed. This one certainly cannot be killed. Although the Constitution does not say explicitly that a court can invalidate a statute or any other official act that violates the Constitution, such a powe r is implicit in the text, and it has been assumed, affirmed, and exercised for the last two hundred years or so. Moreover, there is no movement to repeal it, which anyway would probably require a constitutional amendment. The Supreme Court is unlikely to "discover" that it has been usurping the authority of the other branches of government for two centuries. Yet the quixotic nature of the attacks on judicial review, and their political unreality, does not mean that they are futile, or purely "academic." For if these critics of judicial review are right, then the courts ought to be hesitant, at the very least, to exercise the power of judicial review. This is, in fact, an old view, which was powerfully argued by James Bradley Thayer in 1893. It may become more popular than it currently is if Tushnet and the other skeptics succeed in convincing enough people th at their criticism has merit. The arguments against judicial review are both theoretical and empirical. The skeptics observe, for a start, that people, including officials, take the Constitution seriously even when there is no prospect of judicial enforcement. We saw this in the Clint on impeachment: although the courts take a handsoff attitude toward impeachment, Congress was careful not to stray outside the mainstream of arguable interpretations of the various constitutional provisions bearing on impeachment. Imaginative arguments th at would have strained the constitutional text and understanding, such as the argument that the Senate could convict the President of high crimes and misdemeanors yet decide not to remove him from office, were ruled out of bounds. As Tushnet argues, plaus ible charges of unconstitutionality can be highly effective political rhetoric. Legislators and other officials are likely to take the Constitution more seriously if they cannot pass the buck to the courts. For they are more likely to be blamed for uncons titutional actions if there is no mode of correction. Similarly, the critics continue, the public is unlikely to take an active interest in the Constitution if constitutional interpretation is the preserve of a small and esoteric judicial mandarinate. Judicial review tells the public that the Constitution is the business of the judges, not the business of the people. Tushnet argues that the judicialization of the Constitution has deprived constitutional rhetoric of the political and moral power that it possessed when Lincoln appealed to the spirit of the Con stitution (broadly interpreted to include the Declaration of Independence) in his denunciation of slavery. Where the Constitution is clear, for example in entitling each state to two senators regardless of population, there is no need for judicial review to determine whether there has been a violation. The violation would be obvious, and (save in an extraordin ary crisis) the people would be indignant. Where the Constitution is unclear, judicial review is likely to be guided by the political prejudices and the policy preferences of the judges rather than by the Constitution itself. The text is so old, and the c ontroversies over its meaning are so charged with political significance, that constitutional "interpretation" in doubtful cases (the only cases likely to be litigated) is bound to be creative and discretionary rather than constrained and interpretive. This would be fine, if a committee of unelected lawyers, which is what the Supreme Court is, had the resources for informed lawmaking; but it does not, largely owing to its under-specialization. Constitutional law covers a vast domain of policy issues, fr om immigration to education, from poor relief to homosexual rights, from crime to religious liberty. The Justices are rarely well informed about any of them. For this reason, constitutional decisions, lacking guidance either from the text of the Constitut ion or from a body of expert knowledge, are likely to reflect, and to enact, the prejudices of the social set, the "class," the cultural elite, from which Justices of the Supreme Court are drawn. Courts also lack the tools needed to effectuate unpopular constitutional rulings. They can forbid public school segregation, but they cannot prevent (or they lack the political will to prevent) parents from putting their children in private schools or mov ing to lily-white neighborhoods. (Busing is a highly imperfect remedy for such "white flight.") Courts can create new constitutional rights for criminal defendants, but they cannot muster the will to forbid legislatures to respond by making sentences more severe, or by starving the lawyers for indigent criminal defendants of essential resources, or by curtailing nonconstitutional rights of criminal suspects. As a consequence of their limited fact-finding capacity, courts cannot even monitor compliance wit h their rules effectively; police who fail to give Miranda warnings can testify that they did, and they will usually be believed. We have a case law system with the immensely powerful and prestigious Supreme Court at its apex; and cases, above all major constitutional cases, are often dramatic and exciting. For this reason, the institution of judicial review has caused constitutiona l debate and analysis to focus excessively on the agenda of the Supreme Court. Parts of the Constitution that for one reason or another do not generate much litigation (such as Congress's exclusive right, regularly flouted with impunity, to declare war), and constitutional claims that the Court decisively rejects (such as the claim that the equal protection clause of the Fourteenth Amendment requires equalizing per-pupil expenditures across public school districts in a state), are off the radar screen, ho wever intrinsically important they are. Instead of studying issues, constitutional scholars study Supreme Court opinions, even though the Justices (who are just lawyers, remember) often know little about the issues that they decide. All these arguments against judicial review are powerful, but they are not conclusive. Some constitutional scholars cling to the faith, though it seems no more than that to me, that the Constitution, when it is read carefully against the historical backgr ound out of which it arose and against the course of the judicial interpretation of it and against the techniques of "legal reasoning," really does resolve such distinctively modern issues as Internet pornography, homosexual marriage, abortion rights, aut omobile searches, sex-segregated military academies, hate speech, public school prayer, affirmative action, campaign financing, neglect by social workers of foster children, the regulation of advertising, the firing of tenured civil servants without cause --the very issues that furnish the agenda of the modern Supreme Court. Another weak point in favor of judicial review, self-regarding and condescending, is that judicial review gives the Supreme Court a platform from which to lecture the American people o n their civic and moral obligations. Empirical studies by Gerald Rosenberg and others have shown that Americans do not take their ethical cues from the judiciary. More persuasive is the argument that the power of judicial review secures the core of the Constitution against infringement. Clear violations are unlikely to be litigated--or if they are litigated, to generate appeals all the way up to the Supreme Court. The result is a misleading selection bias: the cases "selected" for decision by the Supreme Court are those on the legal frontier, and so are bound to be dominated by cases to which the Constitution does not speak with clarity, thus licensing judicial dis cretion. This is a difficult argument to test, because we cannot rerun history without judicial review and count the clear violations. We know that there have been clear violations, notwithstanding judicial review. But just as dogs bark loudest at passersby when t he dog is secure behind a fence, so legislatures are most likely to pass unconstitutional laws when they know that the courts will strike them down. In that way legislators, without doing any harm, still get political credit with the interest group that a dvocated the law--the credit for "trying." Sometimes the public pressure for violating the Constitution is immense, as when Lincoln suspended habeas corpus, or when Congress and state legislatures cracked down on radical speech during and after World War I, and after World War II. (Other examples are the incarceration of Japanese Americans during World War II, the enactment of guncontrol laws in evident violation of the Second Amendment's right to bear arms, and the repeated flouting, most recently in Kosovo, of Congress's exclusive right to decla re war.) In such cases, however, the courts are ignored (as in the case of Lincoln's refusal to comply with the writ of habeas corpus issued by Chief Justice Taney), or the courts flinch, as in each of the other examples that I have just given, by interpr eting the Constitution loosely or, as in the case of the war power, declaring a constitutional claim unsuitable for judicial consideration. In defense of judicial review it may also be argued that courts (especially federal courts, with their unelected, life-tenured judges) do have some important advantages over ordinary lawmakers, despite the undoubted limitations of their capacities in some respects. They are insulated from most of the political pressures that bedevil elected legislatures, pressures that sometimes reflect selfish and parochial interests, ugly emotion, ignorance, irrational fear, and prejudice. This insulation, together with the traditions and the usages of the bench and the fact that the higher federal judges are screened for competence and integrity, confers on the judges a power of detached and intelligent reflection on policy issues that is a valuable complement to the c onsideration of these issues by ordinary lawmakers. Of even greater importance is the fact that ordinary lawmaking has built-in blockages, structural impediments to the effective functioning of democratic government, that often only the courts can remove. The clearest example is the reluctance of a malappo rtioned legislature to reapportion itself, since the legislators who benefit from the malapportionment will fight like the devil against reapportionment. Officials may seek to entrench themselves with laws forbidding "unfair" criticisms of officials; incu mbent legislators may try to make it hard for challengers to finance their campaigns or to get a place on the ballot; unpopular minorities may lack sufficient political influence to ward off discriminatory legislation; and the sheer inertia of the legisla tive process--the fact that it is as difficult to repeal a statute as to enact a new statute--allows many obsolete, unpopular, even irrational laws to remain on the books and to cause occasional mischief. Congress's seniority system, combined with Democra tic domination of Southern politics, gave Southern congressmen and senators the power (until the 1960s) to block civil rights legislation strongly supported by a majority of Americans, producing a legislative logjam that only the federal courts, wielding the power of judicial review, could break. For all these reasons, the theoretical argument against judicial review must be judged inconclusive, and so we must consider the empirical evidence. But the empirical analysis of judicial review is bedeviled by the problem of counterfactuality to which I have already alluded: we know what the Supreme Court has done in the name of judicial review, but we do not know what legislatures would have done if the Supreme Court had disclaimed the power of judicial review. Still, we can make some pretty good guesse s. Official racial segregation of public schools in the South would not have ended so soon if the Court had not decided Brown v. Board of Education, although it surely would have ended many years ago. Many state legislatures would no doubt have remained mala pportioned to this day had it not been for Baker v. Carr and the cases following it. Connecticut and Massachusetts would have retained, for a time anyway, their laws forbidding the sale of contraceptives, had it not been for the Court's decisions invalida ting the laws. A number of states would still have highly restrictive laws concerning abortion. What these cases have in common, and what enables reliable counterfactual prediction in them, is that they all involve the use of novel constitutional principles to invalidate long-existing laws. When those laws were adopted, there was no basis for thinki ng them unconstitutional, and so these are not cases in which a legislature not shielded by judicial review from the consequences of its actions would have hesitated to act. These laws would have been enacted, at the same time and in the same form, had th ere been no power of judicial review, and--such is the inertia of the legislative process--they would have lasted longer, in some instances much longer, had the Court not exercised that power to strike them down. These are cases in which the power of judicial review clearly made a difference. The unclear cases are those in which legislation was passed in the teeth of the Constitution, such as the federal laws--which the Supreme Court struck down--forbidding the bu rning of the American flag. We do not know whether, in the absence of the power of judicial review, Congress would still have passed such constitutionally questionable laws. Opposition within Congress would no doubt have been greater had opponents not had a second line of defense--namely, judicial review of the laws. They could swallow their doubts and allow the Court to strike down the laws, and thus avoid the wrath of their constituents. We can also--this is Michael Klarman's tack--look at the cases in which judicial review does seem to have made a difference, and ask whether these cases, taken all in all, have made the nation better off in some sense on which most of us might agree. Obvi ously it is not enough just to pick one's favorites. We must consider--it is a daunting task, unfortunately--the full array, over time and through policy space, of the decisions invalidating federal and state legislative and executive action on constituti onal grounds. We must consider the consequences in the long term as well as in the short term. Viewed in the short term, the Supreme Court's decision in Brown v. Board of Education, striking down public school segregation, was a triumph of enlightened social policy. Fr om a longer perspective, however, the decision seems much less important, even marginal. For very little actual enforcement of minority rights occurred until the enactment of anti-discrimination legislation in the 1960s, and that legislation appears to ha ve owed much more to the non-legalistic civil rights movement led by Martin Luther King Jr. than to anything the Supreme Court had done or said. The same may be said of the women's movement. It, too, seems to owe little to the Court, and much to transformations in women's role in society that have mainly technological causes (better contraceptive methods, lower infant mortality, improved household labor-saving devices, and the reduced importance of physical strength in the job market). Roe v. Wade undoubtedly increased the national rate of abortion, but no one can say with any confidence whether that is good or bad. In periods of real threat to constitutional values, the Court tends to take a back seat, and at other times--the present time, for example--its constitutional interventions tend simply to impede efforts to experiment with solutions to social problems, whe ther those experiments take the form of prohibitions against hate speech and against Internet indecency, or residency requirements intended to staunch the inflow of indigents to states with generous welfare laws, or term limits for Congressmen, or the one -house veto of administrative regulations, or the line-item veto, or requiring prisons and other public bodies to accommodate the practices of religious minorities, or efforts to limit the role of money in political campaigns--all areas where the Supreme Court, in the name of the Constitution, has thrown spanners into the works. The experiments may be wrong, but we will never know if they are snuffed out before the results are known. Tushnet, reviewing such examples, concludes that "judicial review basically amounts to noise around zero: it offers essentially random changes, sometimes good, sometimes bad, to what the political system produces." This is conjecture. The great value of t he work of the skeptics is not that they have "proved" that judicial review is a bad thing on balance, or that their writings will inspire a movement to amend the Constitution to abrogate the power. It is that they have undermined the complacent belief th at judicial review is unequivocally a good thing. They have challenged the believers to make a better case; and if the believers fail to do so, the result may be to make the judiciary more sensitive to the dangers to society of throwing its weight around in the name of judicial review; more mindful of Isabel's warning to Angelo in Measure for Measure that "it is excellent to have a giant's strength: but it is tyrannous to use it like a giant"; and more hesitant, therefore, to use the power of judicial rev iew to block the policy initiatives of the other branches of American government. Richard A. Posner is Chief Judge of the Seventh Circuit. His new book, An Affair of State: The Investigation, Impeachment, and Trial of President Clinton, will be published in September by Harvard University Press. (Copyright 1999, The New Republic)