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How Independent is the Court?

The Hollow Hope: Can Courts Bring About Social Change?

by Gerald N. Rosenberg
University of Chicago Press, 425 pp., $29.95


In 1922, Charles Garland, a twenty-one-year-old undergraduate at Harvard, received $800,000 from his father’s estate. Believing that he was not entitled to money he had not earned, Garland made a grant to the American Fund for Public Service, which was dedicated to the support of movements for social reform. The committee administering the fund urged that a donation be made to the National Association for the Advancement of Colored People (NAACP), in order to help bring legal actions in the courts to desegregate education.

Roger Baldwin of the American Civil Liberties Union argued vigorously against the legal approach. In Baldwin’s view, an emphasis on law and the courts was inadequate to the task at hand. But the grant was nonetheless made. It helped finance an extraordinary campaign to persuade the federal courts to abolish apartheid in America. In 1954, a unanimous Supreme Court outlawed school segregation in the most famous case of this century, Brown v. Board of Education, which had been brought by the NAACP, Garland’s original beneficiary.

Americans have taken pride in the independence of their judges, and the Brown case may well be the leading symbol of judicial independence. During the last forty years, the Supreme Court has been widely thought to be the source of extraordinary victories for human liberty, of which the Brown case was the greatest. The Court has also struck down many forms of sex discrimination; imposed on state governments the principle of “one person-one vote”; recognized extremely broad rights of freedom of speech; created and protected a right of privacy; removed prayer from the public schools; and renovated the criminal justice system. To be sure, many people object to one or more of these developments. But what is especially striking is that most Americans—of otherwise widely diverse views—regard much of the resulting system of constitutional liberty as a fundamental part of our legal heritage. And this system is a product, not merely of the Constitution’s framers, but more fundamentally of the interpretive practices of the modern Supreme Court, apparently doing its work above the battles of ordinary politics.

If our judges are indeed independent, what makes them so? If we read the Constitution, we will find two important guarantees. First, judges have life tenure; “during good behavior,” they cannot be removed from office. Second, Congress may not diminish judges’ salaries. These guarantees, it is often thought, immunize the courts from the prevailing political winds. Above all, they permit the Supreme Court to deliberate about the meaning of the Constitution in a way that is free from partisan pressures.

So much for the Constitution. A look at recent history tells us something quite different about judicial independence. Republican presidents (Nixon, Ford, Reagan, and Bush) have made eleven consecutive appointments to the nine-member Supreme Court. (President Carter, unlucky in this as in other matters, was the only president in American history to serve a full term without making a Supreme Court appointment.) Reagan and Bush have appointed about 70 percent of current judges on the federal courts of appeals. As a result, the supposedly independent federal judiciary is moving constitutional law in largely predictable directions.

To be sure, the Court is no monolith, and the current justices have shown themselves not to be mere instruments of those who appointed them. All of them listen to arguments and reasons, and some interesting new alliances are emerging. Justices O’Connor, Kennedy, and Souter often disagree with justices Thomas and Scalia, with the former group generally arguing for more stability in the law, for relatively more expansive conceptions of constitutional liberty and equality, for adherence to the principle of stare decisis, or for making incremental changes and not radical ones. Recently, the Court refused to overrule Roe v. Wade, protecting the right to an abortion and (importantly) for the first time asserting the relevance of sex equality to the abortion issue; it called for desegregation of public universities; it strongly affirmed free speech rights, most notably in a case involving cross-burning.

But the moderation of some of these decisions, and the new alignments, should not obscure the basic picture. The refusal, by a five-to-four majority, to reject a nineteen-year-old precedent that has become fundamental to American law hardly shows the irrelevance of the appointments process—especially in view of the fact that the Court did significantly restrict the right to abortion as it was understood in Roe, while explicitly overruling several recent cases interpreting Roe. Moreover, the cross-burning case could be seen as forcing a difficult choice between the interest in an, at best, exotic form of “speech” and the interest in racial equality. The Court’s decision may well have been correct, but it is very much in line with right-wing attacks on campus speech codes (attacks that, to be sure, have considerable force) and for this reason was altogether to be expected from justices appointed by presidents Reagan and Bush.

If we step back a bit, we will get a relatively clear general picture. Many of the recent cases were easy ones. They could appear difficult, or produce surprisingly “moderate” five-to-four or six-to-three majorities, only on a Court that had been thoroughly transformed through the politics of the appointments process. Notwithstanding the splits among the Reagan-Bush appointees, the center of gravity has been fundamentally shifted. Consider, for example, the fact that Justice Stevens, a Republican and a moderate conservative appointed by President Ford, often appears to be on the current Court’s extreme liberal wing. This is illuminating, since Stevens, whose own views have remained constant over the years, frequently appeared to be a conservative on the Burger Court—which was itself described as the “Nixon Court” and thought by many to be fundamentally opposed to the liberal constitutionalism of the Warren Court. The shifting place of Justice Stevens on the Court’s spectrum of opinion is perhaps the best testimony to the depth of the recent transformations, and of the importance of the appointments process to those transformations.

Some current trends bear out this view. The Supreme Court is increasingly hostile to affirmative action. It is skeptical about using busing as a remedy for school segregation. As noted, it has restricted Roe v. Wade. It has scaled back the protections given to people accused of crime. During the last several years, it has usually resisted the claims of both blacks and women. And it has adopted a seemingly technical but extremely important principle, to the effect that the executive branch may interpret ambiguous laws however it chooses.1

Quite apart from the question of whether these new directions are desirable, what do they tell us about the matter of judicial independence? Everyone knows that their positions on the so-called “social issues,” such as crime, welfare, affirmative action, and abortion, were important to the electoral victories of the Republicans between (approximately) 1968 and 1992. The Republican Party platforms setting out new policies with respect to these issues sometimes coincide with the new directions taken by the current Supreme Court. On many questions, the views of the Court with respect to the meaning of the Constitution tend to overlap with the views expressed in the party platforms on public policy.

For those concerned about judicial independence, this is an exceedingly important fact. By itself it hardly establishes that, as some believe, constitutional law is really a matter of “politics”; to make sense of that complex claim, we need to say a great deal more about what counts as “law,” and about what counts as “politics.” Nor do we have reason to think that the current justices are frauds, or that they reject the Constitution in favor of their own views about the public good. But the belief in judicial independence must be put in question in any period in which the meaning of the Constitution tends to follow the policies and values of those who appointed the justices. And since the meaning of the Constitution has very frequently been connected to such policies, the notion of judicial independence clearly needs to be reconsidered.

Such reconsideration is long overdue. Under the spell of Brown v. Board of Education, many commentators, obviously drawn to causes favored by the Supreme Court under Chief Justice Earl Warren, may have approached questions about the court’s independence too casually. For example, Ronald Dworkin’s influential account describes the Court as a “forum of principle.”2 Dworkin certainly does not believe that judges are uninfluenced by politics; but his account of the Supreme Court plays down the actual role of political influences. Although he says the justices should take account of the possible political reactions to their decisions and the difficulties in enforcing them, he urges the Court to undertake its deliberations in a way free from partisan pressures. And although Dworkin has criticized recent appointments to the Court as crassly political, his spirited defense of an aggressive judicial role largely depends on his apparent assumption that the members of the Court will aspire to be independent of political influences.

On this view, the Court should not be narrowly bound by the “framers’ intent.” It should not accept the idea that democracy, by itself, calls for the justices to be receptive to all the outcomes produced by majoritarian politics. Sometimes an active role will be justified, and precisely in the interest of democracy. This is so, for example, with respect to the rights of free expression, whose judicial protection against majorities is necessary for democracy itself. In any case the underlying question is what should be the relation of the Court to our constitutional order, and here it is hopelessly inadequate to say simply that the Court should respect “democracy.” For Dworkin, and for many others, the Court’s decisions should be based on the principles that make the best sense of the Constitution’s provisions, while keeping faith with understandings arrived at in previous cases. And in this process, the Court is described for the most part as an independent agent, resisting the pressures of partisan politics.

The Brown decision, along with many other cases, has a critical place in this argument. A Supreme Court that tries, as the Warren Court did, to make sense out of constitutional aspirations, instead of following narrowly defined, historically specific understandings, appears to have been the source of many advances for constitutional liberty in America. In any case an independent Court, deciding on constitutional meaning free from partisan pressures, appears to be a central component of our constitutional heritage. And so it is often thought.

William Rehnquist, Chief Justice of the current Supreme Court, has written a lively book that is largely concerned with the subject of judicial independence. Grand Inquests gives a clear account of the impeachments of Supreme Court Justice Samuel Chase in 1804–1805 and President Andrew Johnson in 1871 and—especially important for Rehnquist’s purposes—of the Senate’s failure to convict either official. For assessing judicial independence, the attempt to impeach Chase was a particularly interesting case. The text of the Constitution says only that justices may continue to serve “during good behavior.” Suppose that the Senate felt itself free to remove a justice from office whenever it found his decisions or votes deeply objectionable—or whenever it concluded that the justice’s conduct before he was appointed, or his actions outside the Court, were not compatible with “good behavior.” An understanding of this kind would fundamentally alter our legal system. It would make the Court extremely vulnerable to political pressures.

  1. 1

    The principle, deriving from Chevron v. NRDC, 467 US 737 (1984), is important because when Congress leaves any doubt, legal decisions will be made by the president and the executive branch. It was this principle that enabled the Reagan administration to adopt its abortion “gag rule”—an entirely novel interpretation of an ambiguous, fourteen-year-old law. That novel interpretation ensured that birth control clinics may not even speak about the availability of the abortion option. It is especially important that under current conditions, a two thirds majority is often necessary to override a presidential veto of any law attempting to restore Congress’s original judgment.

  2. 2

    Ronald Dworkin, A Matter of Principle (Harvard University Press, 1985). See also Ronald Dworkin, Law’s Empire (Harvard University Press/Belknap Press, 1988). I refer to Dworkin’s approach not because it is idiosyncratic, but on the contrary because it captures, in especially lucid and powerful form, views about the role of the Constitution and the Court that are quite widespread. See also the discussion of “integrity” on the recent Court in Dworkin’s article in the New York Review of August 13, 1992.

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