Copyright National Affairs, Inc. Spring 1993Conservatives sometimes remark that liberals would be less enamored of judicial activism if it were employed on behalf of conservative causes. A powerful polemical point, surely, but not one that has caused much insomnia in Cambridge.
For the premise of the argument--that conservative Justices might fashion an array of novel "conservative rights"--is known to be an almost entirely empty threat. Most conservatives reject that sort of activism, and so does the Rehnquist Court. When conservatives fault the Court, it is not for failing to create conservative rights, but for occasionally reaffirming liberal rights such as the right to abortion.
I have much sympathy for this view. I agree that the Court's role should, ideally, be narrowly circumscribed. In defending this ideal, however, conservatives have neglected to ask whether it is attainable--a curious omission for those who habitually accuse liberals of wishful thinking.
I will offer here some friendly criticisms of conventional conservative jurisprudence. My purpose is to acknowledge the political realities of constitutional adjudication, without sacrificing what is authentic and valuable in the concepts of neutral principles and the rule of law.
FRAMING THE QUESTION
Scholars of all political creeds have assumed that the basic question in constitutional jurisprudence is: How should the Supreme Court interpret the Constitution? We do not ask how an individual Justice should interpret the Constitution, but rather how "the Court" should do so. There are obvious reasons for this. Judicial decisions are usually the product of at least some collective deliberation, and are handed down not as the edicts of individuals, nor even of a dominant majority, but rather in the name of the court. Yet the question of how a "court" should decide cases is--in an important sense--unrealistic. Courts don't think; individuals do. Even when Justices act in concert, their collective decisions require antecedent individual decisions.
Of course, in most legal contexts the convention that leads us to discuss what "a court" ought to do, rather than what an individual judge should do, is convenient and harmless. There is no important difference between the two. If we know how "a court" should decide an issue of contract law, then we know how an individual judge should decide the same issue. In the field of constitutional law, I will suggest, this is far less true. In constitutional law, unlike most other branches of law, there is no judicial consensus on the ground rules and aims of the enterprise. In constitutional law, liberal and conservative judges are not always playing by the same rules.
Mainstream conservatives believe that the most fundamental norm of constitutional adjudication is "judicial restraint." This is a loose term that I will define as a court's refusal, for principled reasons, to exceed its proper authority and role. Conservatives justify judicial restraint chiefly on two grounds. First, they argue that restraint is often required by the Justices' obligation to apply the original meaning of the Constitution ("originalism"), rather than engage in "result-oriented" judging. And second, conservatives believe that by confining the role of courts, judicial restraint preserves federalism and democracy.
These are the standard justifications for judicial restraint. My question is this: Do these justifications lose validity, for any individual Justice, if he or she discovers that most other Justices do not accept them?
RIGHT, WRONG, AND IN-BETWEEN
In everyday life we commonly distinguish between courses of action that are right regardless of how others behave, and those that are right only if many or most others follow them. It is wrong, for example, for a prison guard to treat prisoners brutally. Such conduct does not cease to be wrong if all the other guards are brutal. It is also wrong to steal, even if you live in a neighborhood where theft is rampant. But often the propriety of conduct is affected by the practices of others, especially of one's competitors:
* A professor may believe that, ideally, teachers should devote most of their time to teaching, and far less to research. After observing his colleagues' behavior, however, he may reverse these priorities in order to maintain his standing in the profession.
* Assume the same professor is a conservative in a department dominated by leftists. For many years, they have discriminated against conservatives in hiring decisions. The professor may decide to oppose the hiring of leftist candidates, even though he believes that ideally professors should be hired without regard to their political views.
* A corporation that wishes to do business in a country where bribes are necessary to obtain the requisite permits, may engage in bribery even though the company's directors and officers deplore the custom and would abolish it if they could.
* A senator who opposes filibusters in principle, but observes that the other party has filibustered against bills he favors, may decide to filibuster against some of the other party's bills.
* Just Cause, a public interest group, may believe that ideally no politician should obtain money from a political action committee. But since such committees are lawful, and have been formed by other groups that compete for politicians' favors, the members of Just Cause may decide to form their own political action committee.
Each of these choices is debatable, but in practice most people make the kinds of decisions that I have suggested because they are unwilling to place themselves or their causes at a competitive disadvantage.
The question for conservative jurists is this: Is the wrong of judicial activism absolute, like the wrong of brutality toward a prisoner, or is it more like one of these other hypothetical cases? Surprisingly, discussions of constitutional interpretation regularly ignore this fundamental question. All major constitutional theorists seem to assume that a Justice should interpret the Constitution in whatever fashion--originalist or nonoriginalist, activist or restraintist--the theorist believes to be proper for the Court as a whole, without considering the contrary practices of other Justices. If a theorist believes, as conservatives commonly do, that most twentieth-century Justices have rejected his theory, he concludes that the nation needs new Justices, not that he himself needs a new theory.
Is it true that the obligation of a Justice to interpret the Constitution properly is unconditional? Let us consider two hypothetical cases.
JUSTICE NEW'S DILEMMA
Justice New has recently joined the Supreme Court. He is, we will assume, a man of conservative political opinions. Concerning jurisprudential theories, however, he is unusually openminded.
Case One. In the first case that comes before Justice New, the petitioner is a liberal Democrat who has been fined for violating an ordinance that prohibits the distribution of "scurrilous literature." The petitioner handed out a pamphlet that denounced Republicans as "white-collar racists" and urged voters to elect a Democratic town council.
This is about as easy as a constitutional case can be. Despite his political differences with the pamphleteer, our Justice will doubtless vote to reverse the conviction. Why? The obvious reasons are freedom of speech, fidelity to precedent, and the rule of law. But there is another reason. Justice New knows that liberal judges will vote to protect conservatives' speech in analogous cases, and he prefers a society in which both parties observe this rule to one in which they lawlessly fight, case by case, to establish a one-party reign of censorship. He believes in a "neutral principle" of freedom of speech, but his commitment to that principle may be, at bottom, conditional. In a society where the opposing party's judges did not respect his party's right to speak, he might not respect theirs.
Justice New also knows that by and large other Justices of every political persuasion apply all rules of law--not just freedom of speech--impartially to political friends and foes, to men and women, to whites and blacks. He gladly joins this tradition, preferring it to a dog-eat-dog struggle for absolute power. Again, he is subscribing to a neutral principle, but his adherence to that principle may again be conditional. If his political opponents were to reject the principle with sufficient consistency, duration, and consequence, he might reciprocate.
Case Two. Justice New's next case is more difficult. Mary and John O'Brien have asked the Court to invalidate a school financing system that requires them to pay taxes to support free public schools, but that does not compensate them for the cost of the parochial school education they prefer for their children. The O'Briens allege that this system deprives them of liberty and property without due process of law, infringes the reserved rights of the people under the Ninth Amendment, and violates the free exercise of religion clause.
At least as a matter of legislative policy, Justice New agrees with the O'Briens. He knows that few rights are more fundamental than the right to shape one's children's education, and he believes that religious parents should have the right to choose a religious school without having to pay the state for the secular education that they reject. He believes, moreover, that competition improves education just as it does other services; by subsidizing public schools the government reduces educational quality. Therefore, New favors school voucher systems that compensate parents for the cost of private schooling. But he is doubtful that the Constitution dictates this result.
One of Justice New's clerks points out that several precedents lend some support to the O'Briens' constitutional argument. Although none of the cases is squarely on point, they are about as pertinent as Griswold v. Connecticut was in Roe v. Wade.
New believes Roe and Griswold were activist decisions that lacked any solid constitutional foundation. Yet both decisions have recently been reaffirmed. The Court has assumed the power to act without clear constitutional warrant, New observes, and there seems to be no prospect that it will abandon that power. What bearing does this have on New's vote in the O'Brien case?
To answer this question, we need to consider the major arguments for judicial restraint (rule of law and deference to democracy), and whether Justice New should feel bound by them even in situations where most liberals do not.
THE RULE OF LAW
By their very nature, purely legal reasons for judicial restraint lose much of their force unless most judges obey them, or can eventually be persuaded to do so. The rule of law requires a critical mass, a threshold below which some of its values cannot even partially be achieved.
Equal treatment of litigants, avoidance of arbitrariness, predictable decisions--all of these goals require a high degree of judicial consensus. A Court on which only three of the Justices were influenced by a particular type of legal authority (such as the Framers' intentions) would probably not be one-third as predictable as one on which all nine Justices followed that authority. Indeed, a Court that was one-third originalist might be more erratic in some fields than one whose decisions were based solely on the well-known prejudices of nine politician-lawyers.
Insofar as his goal is to maintain the rule of law, Justice New needs to know not just whether the Court ought to practice originalism, but whether it actually does. Ironically, the more he accepts the conservative charge that liberal Justices have repeatedly ignored the original meaning of the Constitution, the more he must reject the conservative assumption that Justices are required by the rule of law to be faithful to that meaning.
Constitutional thinkers seem to agree that some of the Justices are originalists. Clashes between originalists and nonoriginalists, we are given to understand, occur regularly on the Court, and not merely in the law schools.
But who are these originalists? Few scholars have paused to draw up a list. To do so, one should distinguish--as scholars hardly ever do--between votes that were in all likelihood determined by an originalist approach to judging, on the one hand, and votes that were merely coincidentally originalist, on the other. If all it takes to be an originalist is a vote that coincides with the Framers' intentions, then all Justices are at least part-time originalists.
A true originalist, however, feels bound by the original meaning even when he disagrees with it. For this reason, one cannot cite Chief Justice Rehnquist's votes in capital cases as examples of his "following" or "adhering to" the Framers' intentions. Since Rehnquist is a devoted conservative, we would expect him to uphold capital punishment even if he were a thoroughgoing legal realist who rejected any obligation to follow the Constitution. We have no reason, in such cases, to applaud Rehnquist's "judicial restraint." His restraint is not tested.
By the same token, it would be misleading to cite the Marshall Court as an exemplar of originalism. If the decisions of the Marshall Court were more in accord with the Framers' intentions than were those of the Warren Court, it does not follow that Marshall and his brethren were more restrained. Their "originalism" may have been due to the fact that they held socioeconomic views that coincided with the Framers' (or because they had a much smaller corpus of anti-originalist precedents to deal with), and not because they exercised greater self-restraint in interpreting the Constitution.
In order to conclude that authentic originalism exists, we need to find Justices who seem to have voted against their personal political convictions, not out of a sense of prudence, nor even out of fidelity to precedent or democracy, but out of a sense of duty to enforce the original meaning of the Constitution.
In cases where the text of the Constitution is clear, there is a great deal of evidence that the Court's decisions have at least sometimes been affected by the wishes of the Framers. Nobody ever argues, for example, that the Court should "adapt the Constitution to modern conditions" by holding that the president's term is now eight years. Where the text is unclear, however--as it is in our O'Brien case--I see no evidence that more than an occasional Justice has been swayed by research into the Framers' imperfectly expressed intentions. Indeed, it is difficult to think of a single major case in the entire history of the Court in which the Framers' ambiguously expressed intentions seem to have been decisive.
But resolving all doubts as generously as possible, let us assume that of today's Justices, Rehnquist, Scalia, and Thomas are all consistent, authentic originalists. That strikes me as insufficient originalism to supply the requisite critical mass. Lacking that (and, in many cases, lacking consensus even among originalists), the argument that originalism promotes consistent, predictable decisions is weak. Therefore, Justice New should not feel obligated by the rule of law to cast his vote in accordance with the original meaning of the Constitution, even if he can ascertain its meaning for this case.
DEMOCRATIC VALUES
In most constitutional cases, the best arguments against judicial intervention are based not on the rule of law, but on democratic values. Justice New dislikes judicial activism because even when it is lawful it usually detracts, however slightly, from self-government. New believes that the Court has too often intruded on the proper spheres of elected legislators. He believes that ideally local legislatures, close to local problems and answerable to local people, should be left to devise their own remedies for educational dilemmas such as school funding.
As Justice New muses, however, it occurs to him that a liberal Justice would probably feel fewer compunctions about compromising federalism and democracy, provided that judicial intervention served liberal political ends such as abortion rights, procedural rights for criminal defendants, and so forth.
In such cases, liberals typically invoke one of two arguments. The more activist liberals urge the Court to enforce the evolving "fundamental values" of America, regardless of whether those values are stated in the text of the Constitution. The goal is to keep the Constitution in tune with "the changing aspirations and needs of the people." Unfortunately for this theory, opinion polls reveal that the values of average Americans differ from those of professorial and judicial elites. On most cultural questions, ordinary folk are more conservative. According to the polls, most Americans favor school prayer, oppose affirmative action, and are prepared to crack down on dissidents and criminals without much regard for legal niceties. Those who advocate "adapting the Constitution to the evolving needs and values of our times" don't have these fundamental values in mind. Liberal scholars never say that the horrendous new problems of drugs and inner-city crime justify reinterpreting the Fourth and Fifth Amendments so as to narrow their scope, nor do they argue that the failures of our public schools justify a constitutional right to a school voucher system. As Professor John Hart Ely has observed, "the fundamental values of the American people," as that phrase is used by constitutional jurisprudents, is a euphemism for the fundamental values of the New York Review of Books.
Liberals also justify activism on the ground that it rectifies prejudices against "out groups" that are inadequately represented in the political process. Like other theories of judicial review, this is a highly manipulable concept, usually invoked to justify decisions that are also desired on ordinary political grounds. When we ask whether some class of citizens is unduly disadvantaged in the political arena, it is almost impossible to avoid smuggling normative, political judgments into this ostensibly factual investigation. Not surprisingly, liberal Justices never find that conservatives such as the O'Briens (or Bakke) suffer from unfair political disadvantages.
BALANCING THE INTERESTS
Justice New may well conclude that parents seeking good schooling for their children are as politically disadvantaged as "the liberal interest groups." Nevertheless, he may reasonably decide not to imitate liberal activism. The argument for restraint based on democratic values, unlike the argument based on the rule of law, does not presuppose a judicial consensus. Democracy, like fiscal responsibility or prudence in foreign affairs, is valuable in any quantity. If it is desirable for educational issues to be fought out in the political arena, and our Justice can help to achieve that result by voting against the O'Briens, he should do so. Pro tanto, democracy will be served.
Unfortunately, the problem is not quite so simple. There are other considerations. Suppose that several conservative Justices who value judicial restraint on "democratic values" grounds are able to form a majority in many cases that come before the Court. They can block liberal activism, and they can also prevent the revival of conservative activism. So far, so good. But they also know that liberals will eventually regain control of the Court. What they must then decide is whether to practice restraint when they are a majority, even if they do not expect liberals to show similar restraint when their time comes.
What should they do? A crucial factor, of course, is just how unrestrained liberal Justices have been and are likely to be in the future. New may believe that liberal activist creations like the right of privacy, although grave errors, are somewhat aberrational. Liberal activism has not been as uniform and monolithic as polemicists often imply. Even the least principled, most activist Justice feels certain constraints. Just as liberals have exaggerated the conservatism of the Rehnquist Court, so conservatives have exaggerated the liberalism of the Warren Court. However true it may be that liberal activists have gone too far, it is also true that, for one reason or another, they have not created many of the rights that one might expect from a wholly unconstrained liberal Court: for example, constitutional rights to welfare, to "due care for the environment," and so forth.
LAW OR POLITICS?
Returning to the O'Brien case, let us assume that Justice New concludes that a decision in the O'Briens' favor would not require a degree of activism greater than that exercised by most liberal Justices. According to standard conservative jurisprudence, liberals' practices are relevant only as illustrations of bad judging. But in contexts that are at least arguably analogous, most conservatives would weigh the behavior of liberals in determining what course to follow. Consider three cases:
* Senator Bright believes that it violates sound principles of federalism for Congress to provide the states with grants, for example highway construction funds, that are conditioned on compliance with federal rules concerning unrelated matters. But such conditions are now common. Should Senator Bright vote against a conditional grant bill today, even if he approves of the cause served by the conditions?
* A Supreme Court decision has liberalized standing rules, thus permitting the federal courts to resolve disputes that Writ, a conservative public interest lawyer, believes should be left to the politicians. When a case arises that would advance a conservative cause, but that can only be brought by taking advantage of the liberalized standing rules, should Writ decline to take the case? (Assume that this would not violate Writ's duty to any client.)
* Green, an ultra-liberal lawyer with impressive credentials, has been nominated to the Supreme Court by President Clinton. Knutsen, a conservative senator, must decide how to vote. Knutsen believes that ideally nominees should be evaluated solely on the basis of their credentials, without regard to the popularity of their constitutional positions, and without the oversimplifications of television "attack ads." He also believes, however, that liberals have rejected and will continue to reject that view of the process whenever they care strongly about the result.
Knutsen believes that Green would be an extraordinarily bad Justice, though not for reasons that have sufficient mass appeal to carry the day. Knutsen is aware, however, that from time to time Green has taken unpopular stands that make him vulnerable to an all-out political attack of the sort that liberals mounted against Judge Robert Bork. Should Knutsen decline to participate in this sort of political maneuvering to defeat the nomination?
I believe that in all three of these situations most conservatives would give decisive weight to the behavior of liberals.
Can these situations be distinguished from O'Brien? The most obvious distinction is that O'Brien arises in a judicial context, where we do not ordinarily think it appropriate to speak of how "political opponents" behave, much less to imitate their "mistakes." We think of judges as umpires, not players. But this legal mode of thought assumes a degree of professional consensus that is lacking in constitutional law.
In other branches of law, a "mistaken" decision is commonly perceived as a lapse that will eventually be overruled, or at least rejected by most other courts. But constitutional law, as perceived by most conservatives, does not conform to this paradigm: The major liberal-activist decisions have not been overruled even by a "conservative" Court; they more closely resemble sacrosanct entitlements like farm subsidies than mistaken common-law decisions. In this unique environment, political analogies are more apt than legal ones.
CONVERTING LIBERALS
Conceivably, liberal opinion will eventually veer back to the restraintist views that were popular early in this century. But what might generate such a reversal? This subject is never discussed; yet unless liberals are somehow converted, the long-term effect of conservative restraint is not to make "the Court" restrained, but only to create lulls between eras of liberal activism.
One possibility, of course, is that conservative Justices will win converts by their example of restraint. But this hope is wildly unrealistic. When conservative restraint serves conservative political causes, liberals quite reasonably perceive it as political conservatism, not principled judging. When conservative restraint does not serve conservative political causes, as in the field of property rights, liberals regard this not as a fair exchange for liberal restraint in sociocultural fields, but as an entirely different matter. The great majority of liberals believe that the case for activism is strong on the merits in fields where activism produces results liberals favor. They believe, with equal passion, that the case for activism is weak in fields where it would serve conservative ends. The fact that conservatives agree with them on activism in property rights is certainly not going to lead liberals to change their views on activism in other spheres.
The paradox of judicial restraint is that, insofar as it can be inculcated at all, it can only be inculcated by judicial activism. It was conservative activism, prior to 1937, that bred moderately restraintist liberal Justices like Frankfurter and Black. And it was the liberal activists of the Warren and Burger Court eras who transformed judicial restraint into the tenet of conservative orthodoxy it is today.
Conservatives complain constantly about the self-serving apologies for judicial activism that flow out of the liberal law schools. In a sense, I wholeheartedly agree. But on another level such criticisms are naive: If for fifty years the French had been the only people who were willing to go to war, then of course the Sorbonne's faculty would take a relatively expansive view of the circumstances in which war is morally legitimate.
Superficially the Supreme Court, like the presidency, alternates between liberal and conservative eras, giving both factions' theoreticians an incentive to fashion a politically neutral constitutional jurisprudence. In practice, however, the major prerogative of the Court--rights-creation--has been exercised almost exclusively by liberals for over half a century. Even today the "conservative" Court creates very few conservative rights. Absent a credible threat of broad-scale conservative activism, judicial restraint is contrary to the substantive political interests of liberals, and will remain, in their view, misguided.
The liberal restraintists of the New Deal generation are now a dying breed. Today, even the most moderate of liberal constitutional scholars are activists, at least by conservative standards, as is the current generation of liberal law students--the pool from which Democratic Justices will be drawn thirty years hence. The central strategic fact is that, in the long run, conservatives lack the power to determine whether "the Court" is restrained. They have only the power to determine whether they are restrained. Mainstream conservative jurisprudence, which ignores this reality, is utopian.
The dilemma of conservative jurisprudence, then, is that we must sacrifice either our commitment to judicial restraint or our right to equal power on the Supreme Court. If, with his eyes open, Justice New chooses to sacrifice equal power, I cannot confidently assert that he is mistaken. But he should not do so under the illusion that he has no ethical alternative. He does.
I am most grateful to Michael Zuckert, John Cound, Larry Alexander, Stanley Brubaker, Robert Nagel, Paul Meehl, John Dolan, Richard Morgan, and Linda Shimmin.
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