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From the December, 2000 issue of Touchstone


A Case of Supreme Temptation by Jack Wade Nowlin

A Case of Supreme Temptation

by Jack Wade Nowlin

The close of the Supreme Court’s 1999–2000 term raised the perennial question of the degree to which the Court, the presumptive guardian of our constitutional liberties, itself may constitute a threat to those liberties. Indeed, can we safely rely on the Court to issue fair and dispassionate rulings about constitutional meaning, or is the nation’s highest tribunal with disturbing frequency simply a “lawless” institution, one whose decisions are driven more by ideology and partisanship than by constitutional principle? A series of decisions handed down in the last few days of the Court’s most recent term—in the face of strong dissenting opinion—lends additional credence to the latter view.

Four Hostile Decisions

In Hill v. Colorado, for instance, the Supreme Court broke sharply with its carefully crafted free speech precedents in order to uphold a state law placing severe restrictions on the speech of pro-life demonstrators, counselors, and educators outside of abortion clinics. As Justice Scalia noted in dissent, this decision all too plainly pivoted on the majority’s abortion rights political concerns. “What is before us,” Scalia observed, “after all, is a speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the ‘ad hoc nullification machine’ that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice.” Indeed, in light of the Court’s highly dubious abortion jurisprudence, Scalia concludes that “having deprived abortion opponents of the political right to persuade the electorate that abortion should be restricted by law, the Court today continues and expands its assault upon their individual right to persuade women contemplating abortion that what they are doing is wrong.”

In Stenberg v. Carhart the Court also continued its campaign to limit the political rights of American citizens, striking down a Nebraska law prohibiting the grisly practice of “dilation and extraction” or “partial-birth” abortion. Scalia, again dissenting, observed that “the notion that the Constitution of the United States, designed, among other things, ‘to establish Justice, insure domestic Tranquility . . . and secure the Blessings of Liberty to ourselves and our Posterity,’ prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.”

In Santa Fe School District, the Court struck down a procedure allowing students to elect a student to speak before high-school football games because such activity could at some point involve a student-approved, student-led prayer. Scalia joined a dissent in which Chief Justice Rehnquist observed that “even more disturbing” than the Court’s holding is “the tone of [its] opinion,” which “bristles with hostility to all things religious in public life.” Indeed, the Court’s current establishment clause jurisprudence, as the Court itself admits implicitly, is not supported by the text, original understanding, or our earlier constitutional traditions, and, in any event, scarcely mandates this extreme result.

Finally, in United States v. Dickerson, a case involving a law of Congress that made the absence of Miranda warnings simply one factor affecting the admissibility of confessions rather than an absolute bar, the Court took the extraordinary step of striking down the law while refusing to forthrightly state that it actually violated the Constitution. In fact, three of the seven justices voting to invalidate the law are on record in previous Miranda cases as holding that Miranda warnings are not a requirement of the Constitution but rather simply a judge-made “prophylactic rule.” These justices declined either to retract their earlier statements or to uphold the law in question. They were, then, willing to strike down a law of Congress that they would not say, and seemingly do not believe, actually violates a constitutional provision rather than a mere judicial rule. Justice Scalia, dissenting, concluded that “the Court therefore acts in plain violation of the Constitution when it denies effect to this Act of Congress.”

A Political Machine

Justice Scalia, who has served on the Court for 14 years with great distinction, paints a bleak picture of the majority of his fellow justices. In his view, the current Court serves as an “ad hoc nullification machine” when politically “favored” practices such as abortion are at issue; it has launched a continuing assault on many of our fundamental political rights; it evinces bristling hostility to religion in public life; and it manifests an evident willingness to strike down laws that are not in fact unconstitutional. In short, the general thrust of Scalia’s criticism is that the Supreme Court, driven by ideology, routinely abuses its power of judicial review in violation of the very Constitution its members are sworn to defend.

Of course moral traditionalists are particularly concerned that the Court’s activism in recent years has benefited social liberals on an important range of issues, such as abortion and school prayer. Yet the abuse of judicial power should be of concern to every citizen regardless of his views on these political questions. Notably, this term Justice Scalia also implicitly criticized “pragmatic” and partisan court watchers, pointing to the crucial distinction between “those to whom judicial decisions are an unconnected series of judgments that produce either favored or disfavored results,” and those who demonstrate the proper (constitutional) concern with the judicial process, with the grounding of decisions in the legal principles of the Constitution. Indeed, even a strong advocate of abortion should be disturbed by the Court’s reckless disregard for the constitutional limits on its own powers, and its willingness, even eagerness, to politicize its role in American governance. Such actions should disquiet anyone who values his constitutional rights more than he values a tactical political victory or two.

Judicial Supremacy

There is, however, another twist to the 2000 term and one that is further, perhaps greater, cause for disquiet: Justice Scalia’s own evident willingness, despite the recurring pattern of judicial misconduct to which he so readily bears witness, to endorse unequivocally the principle of judicial supremacy in constitutional affairs. The doctrine of judicial supremacy, in essence, holds that the Court is the supreme expositor of the meaning of the Constitution and that the Court’s constitutional decisions are binding on the other institutions of government beyond their application to the particular parties to the case. In short, on this view, the president and the Congress have little or no role to play in constitutional interpretation. They simply must adhere to the animating principle of the Court’s opinion, accepting the justices’ reading of the Constitution as the “supreme” and “final” understanding of our basic law.

Indeed, as several commentators have suggested, the real story of the 2000 term, and of the Rehnquist Court in the 1990s, may in fact be the willingness of even “conservative” justices—such as Rehnquist, Scalia, and Thomas—to endorse judicial supremacy without reservation, as they did again last term in a footnote in the Morrison case concerning the congressional commerce power, the Fourteenth Amendment, and federalism.

Does the Constitution, rightly understood, grant the Court the “supreme” authority to resolve questions of constitutional interpretation and thus the ultimate power to control constitutional meaning? It is well worth remembering that judicial supremacy was seldom asserted and routinely opposed in the early American Republic. In fact, Marbury v. Madison, the case that in 1803 first established the Court’s power of judicial review, though sometimes mischaracterized as an assertion of judicial supremacy, clearly stands only for the narrower proposition that the Supreme Court is not required to defer to the constitutional judgments of Congress, not the broader judicial “supremacist” view that Congress must defer to the judgment of the Court. Notably, Presidents Jefferson, Madison, Jackson, and Lincoln, among many others, rejected judicial supremacy, maintaining that the other branches of government have the authority to interpret the Constitution independently of the Supreme Court.

In fact, wide acceptance of the doctrine of supremacy began to dominate the mainstream of American politics only towards the end of the nineteenth century, and supremacy was implicitly challenged as late as the 1930s by FDR, who cited Lincoln’s opposition to the doctrine in support of his own innovative “court-packing” plan. The Supreme Court itself did not expressly assert judicial supremacy vis-á-vis the Congress until as late as 1969, and the Court expressly invoked it in state cases only very rarely prior to the late 1950s. One wonders, then, on precisely what evidence Justice Scalia, an avowed “originalist,” imputes to the Founders an “original” understanding of the constitutional design that places such extravagant power in the judicial branch of government.

Further, as a moral and political matter, it is by no means clear that granting the Supreme Court a virtually unchecked power of supreme judicial review is an improvement upon earlier constitutional practices. Of course, we are naturally concerned that legislatures will succumb to the temptation to violate the Constitution, and we wish the Court to serve as a check on legislatures when they do succumb. The Court, however, obviously faces the same temptations, and it can and does use its power of judicial review improperly. As Scalia so cogently attests, the Court regularly invokes the power of judicial review to cover acts of discretionary policymaking, a power that the Constitution, in accordance with the right of representation, allocates to elected legislatures.

Scalia is right, then, to assert that the Supreme Court can exceed its legitimate authority under the Constitution, that it can impinge upon the rights of citizens, that it can act in violation of the Constitution it purports to interpret and defend. This fact is important because the de facto acceptance of judicial supremacy has clearly de-legitimated the use of the most effective political checks on the judiciary, leaving judicial constitutional violations largely unrestrained. The doctrine of judicial supremacy has thus facilitated the deformation of our constitutional design in the mid-twentieth century from a robust representative democracy into a partial “juristocracy,” where elite judges, lawyers, and legal scholars exercise the sweeping authority to resolve questions of individual rights on policy grounds.

Challenging Supremacy

In light of the threat that the Court poses to our constitutional liberties, we could simply reject the constitutional innovation of judicial supremacy in favor of a more equitable distribution of constitutional interpretive authority across the branches of government, endorsing the “departmentalism” that Jefferson advocated as chief executive.

Even if one were to object to such a drastic revision of our current practice on political or prudential grounds, one could still support more narrow limitations on the doctrine of judicial supremacy. One could, for instance, limit the application of the doctrine to those exercises of judicial review grounded firmly enough in a disinterested examination of legal materials to qualify as a good faith interpretation of the Constitution. This marginal, but still significant, limitation on judicial supremacy would undercut the most extravagant and troubling instances of judicial misconduct.

Further, this marginal limit on supremacy would also have a strong structural constitutional basis: the most striking arguments for judicial supremacy are simply the presumptive political disinterestedness and legal expertise of the judiciary. Therefore, the argument for supremacy obviously fails when applied to rulings that do not rest upon these qualities, that are, quite to the contrary, plainly marked by partisanship and a lack of support in legal materials. This position is further strengthened by the duty of the president and members of Congress to uphold the Constitution. There is simply no reason why the members of the executive and legislative branches, who have themselves taken oaths to defend the Constitution, should be bound by a decision that they reasonably view as a judicial constitutional violation—as opposed to a “merely” mistaken constitutional interpretation. The elected branches, then, should accord “supremacy” only to judicial decisions, whether viewed as rightly or wrongly decided, that meet a clear threshold of legal support, political disinterestedness, and good faith.

On this reading of the constitutional design, a president who held the eminently reasonable view that Roe v. Wade is an improper decision, given its nakedly political motivation and its utter lack of support in traditional legal materials, could refuse to recognize the Court’s ruling as “supreme” and therefore could decline to use his executive authority to enforce it. A Congress holding a similar view of Roe could properly consider cutting the Court’s appropriations or altering its appellate jurisdiction in a legislative defense of the Constitution.

Temptation & Moral Restraint

Of course, even such a limited political check on the judiciary could be abused by the political branches, just as the power of judicial review can be and is routinely abused by the Supreme Court. The final question is whether, with our constitutional liberties at stake, we trust judges more than we trust legislators and our fellow citizens. As Justice Scalia has suggested, the justices of the Supreme Court have no more special insight into moral questions than “nine people picked at random from the Kansas City telephone directory.” It should be equally evident that judges possess no greater powers of moral restraint than ordinary Americans and thus have no special power of resistance to the political temptations to abuse their authority. Indeed, then, a more balanced apportionment of both our faith and skepticism across the institutions of government strongly suggests that we limit the doctrine of judicial supremacy to good faith exercises of the judicial power.

In particular, then, the 2000 term highlights a great tension in the jurisprudence of Antonin Scalia: his uncompromising condemnation of judicial policy-making and his apparent wholesale acceptance of judicial supremacy; his recognition that the Supreme Court regularly abuses its power of judicial review in violation of the constitutional rights of American citizens and his apparent endorsement of a doctrine that seems to leave no workable checks on the Court to prevent that abuse. We are asked, evidently, simply to depend upon judicial self-restraint for the preservation of our constitutional liberties, but, as Scalia’s brilliant string of dissents this term demonstrates, that is often not enough.

In the final analysis, it seems undeniable that the Court is, for the most part, simply an undemocratic mirror image of the very legislatures it presumes to restrain, complete with its own “political” vices, including a willingness, when the occasion arises, to sacrifice constitutional principle to achieve desired political ends. Therefore, if we do accept judicial supremacy, so that the Court may “save” the Constitution from unprincipled legislators, we may well ask: Who will save the Constitution from an unprincipled Court and shield our liberties from judges who place politics above constitutional principle?

Jack Wade Nowlin, a west Texas native, received his law degree from the University of Texas at Austin and his Ph.D. in political science from Princeton University. He is an assistant professor at the University of Mississippi School of Law, teaching constitutional law and jurisprudence. His article, “The Constitutional Illegitimacy of Expansive Judicial Power,” is to appear in the Kentucky Law Journal. He resides with his wife Stephanie in Oxford, Mississippi.

“A Case of Supreme Temptation” first appeared in the December 2000 issue of Touchstone. If you enjoyed this article, you'll find more of the same in every issue.

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