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.
In the Chase trial, something very much like this was at issue. Chase was impeached on the basis of his questionable conduct as a district judge presiding over the criminal prosecution of a journalist, one James Callender. Callender had been indicted under the infamous Sedition Act, which allowed fines and jail sentences for criticism of government. There was plausible evidence that, in his conduct during Callender’s trial, Chase had shown bias in favor of the government and had acted improperly. It appeared, for example, that Chase had interrupted and harassed Callender’s lawyer, that he had not allowed relevant testimony on Callender’s behalf to be admitted, and that he had allowed a juror to be seated who had apparently made up his mind against Callender.
It was alleged, moreover, that Chase had brought pressure on a grand jury to indict a newspaper for libeling the government. He later addressed another grand jury in an unusually inflammatory manner, attacking changes in the state law allowing universal suffrage as creating a “mobocracy, the worst of all possible governments”; and he challenged, on policy grounds, recent decisions of the Republican Congress. Rehnquist concludes that some of these charges had weight, at least in the sense that they showed improper behavior on Chase’s part. In particular, Rehnquist suggests that Chase’s comments on the “mobocracy” went beyond what was acceptable at the time, that there was evidence of Chase’s bias against Callender, and that the exclusion of testimony on behalf of Callender was indeed questionable.
Despite all this, Rehnquist writes, practically all contemporary observers agreed that the Senate’s impeachment and subsequent trial of Chase were motivated partly by politics. Chase, a Federalist, was a political enemy of the Jeffersonian Republicans, and he was impeached by the victorious Republicans shortly after they were elected. But the final vote fell short of what was required for conviction. The closest votes came on Chase’s exclusion of testimony (eighteen in favor of conviction, sixteen for acquittal) and his comments on “mobocracy” (nineteen guilty, fifteen not guilty)—but neither met the required two thirds majority.
Turning to the question of presidential impeachment, Rehnquist describes how Andrew Johnson was thrust unexpectedly into the presidency by the assassination of Abraham Lincoln in 1865. From the beginning there was tension between Johnson, a relative moderate in his views on policy toward the Southern states, and the Radical Republicans in Congress, who wanted, among other things, to require the seceded states to grant suffrage to the newly freed slaves. Edwin Stanton, the secretary of war, was sympathetic to the Radical Republicans, and remained in the Johnson administration despite his disagreements with the President.
In 1866, the Radical Republicans won significant victories in congressional elections, and hence were in a strong position to override presidential vetoes of their legislation. In 1867, Congress enacted an especially strong measure, the Tenure of Office Act, under which all the federal officials whose appointments required Senate confirmation could not be removed by the president without the consent of the Senate. (Imagine if President Bush could not discharge the attorney general, or the secretary of state, without Senate approval.) In 1868, Johnson fired Stanton on his own. Shortly thereafter, Johnson was impeached, mostly on the theory that the flagrant violation of the Tenure of Office Act was a “high crime or misdemeanor” within the meaning of the Constitution. Ultimately the Senate refused to convict Johnson, but only by a single vote.
As Rehnquist emphasizes, Johnson’s defense was built largely on the doubts whether the Tenure of Office Act itself was constitutional. And in subsequent cases, the Court indeed concluded that the act violated the separation of powers, or, more specifically, the president’s constitutional right to oversee the execution of the laws. Rehnquist thinks that the real importance of the proceeding against Johnson was the recognition of the general need for the president to be immune from Congress, and to be answerable only to the voters. In this way, the Johnson and Chase cases paralleled each other.
Some readers might wonder at this point about Rehnquist’s own involvement in impeachment matters. Rehnquist was appointed by Nixon to the Supreme Court in 1971, after serving as the head of the office of legal counsel of the Nixon Justice Department. Might he want to use the exculpation of President Johnson to defend Nixon against the articles of impeachment drafted by the House Judiciary Committee as a result of the Watergate revelations? The attempt to impeach Nixon was of course abandoned when he resigned after the Supreme Court decided that the special prosecutor was entitled to examine Nixon’s tapes, one of which clearly revealed Nixon’s efforts to obstruct the FBI investigation of the Watergate burglary.
But any concerns about Rehnquist’s possible personal stake in the issue would not be justified. Indeed, Rehnquist argues that the case against Nixon was radically different from the meretricious charges against Johnson. It involved violations of laws that were clearly constitutional and entirely legitimate. The impeachment counts against Nixon charging him with “the obstruction of justice and…the unlawful use of executive power” were, Rehnquist writes, of “the kind that would surely have justified removal from office.”
Rehnquist evidently believes that the system of separation of powers was crucially affected by the Senate’s failure to convict Chase or Johnson. He emphasizes that the concept of an independent judiciary, with the power to invalidate legislative acts, was an American innovation that was deeply threatened by Chase’s impeachment. In his view, the Senate’s refusal to remove a political enemy from office established a crucial precedent, allowing the Court to undertake its deliberations free from political pressures. No American Supreme Court justice has been removed from office after an impeachment trial, and Rehnquist notes that the history of the Court since the proceeding against Chase testifies to the complete independence of federal judges from removal because of their judicial decisions.
Grand Inquests is a vivid and well-written book, and Rehnquist is an able man, but his enthusiasm for judicial independence seems ironic, since his own record strongly suggests the Court’s dependence on politics. Rehnquist was perhaps the most ideologically committed of the justices whose appointments were expressly designed to move the Court in the directions favored by President Nixon. By the 1980s, he had become the most dramatic representative, by far, of the approaches to constitutional law favored by political conservatives. A strong opponent of both Roe v. Wade and affirmative action, he was rewarded for his service in 1986 when President Reagan—an even more severe critic of the Warren Court than President Nixon—appointed him Chief Justice of the United States.
While Rehnquist is right to emphasize that political forces are unable to remove Supreme Court justices from office, it is a bit odd to see him, of all people, celebrating judicial independence. His extraordinary influence over the direction of American constitutional law attests in large part to the Court’s vulnerability to political pressures. Rehnquist’s influence has been made possible not only by his appointment by Nixon and Reagan but, equally important, the appointments of other justices who shared many of his convictions about constitutional interpretation.
We might conclude that the conventional view about the independence of the Supreme Court has yet to take sufficient account of the appointments process. Moreover, those who hold the conventional view have seldom examined the impact of Supreme Court decisions on the real world, an issue that bears equally on the matter of judicial independence. The independent status of the courts would be called into question if their decisions could not be carried out without the consent and support of politicians and large parts of the public.
Gerald Rosenberg’s The Hollow Hope is the first systematic attempt to examine the actual effects of judicial decisions on society. He concludes that courts are exceedingly poor institutions for achieving social reform and that this is so precisely because of their dependence on other institutions that may resist or ignore their decisions. The Brown case is his principal exhibit. Between 1954 and 1964—the ten-year period after Brown—almost nothing happened, Rosenberg claims, to decrease segregation in the schools. In 1964, only 1.2 percent of black children in the South went to school with whites. In Rosenberg’s view there is no direct evidence that the Brown decision actually eliminated school segregation in America.
The process of desegregation began in earnest, he writes, only in the middle 1960s, after the enactment of the Civil Rights Act of 1964. Thus by the end of 1967, 16.9 percent of black children in the South were attending desegregated schools; by the end of 1969, the proportion had risen to 32 percent; and by the end of 1971, 85.9 percent. The evidence strongly suggests that Congress and the executive branch, not the Supreme Court, produced desegregation.
Some people hold that this sort of evidence is not convincing, and that the importance of the Brown decision was indirect. In their view, the Court gave impetus to the civil rights movement and changed attitudes about race relations in ways that helped to produce the very legislation that increasingly eliminated school segregation. But this too is a claim about the facts, and Rosenberg thinks it is not true. He finds no evidence that Brown helped to mobilize people who were concerned with civil rights or that the decision was influential in changing public opinion. His skepticism is based on a careful examination of many possible sources of information, ranging from the financing, rhetoric, and activities of civil rights organizations to the reactions of the press and public opinion polls. He finds, among other things, that the press did not pay more attention to civil rights issues following the Brown decision, that civil rights legislation in the 1950s and 1960s was debated with little or no reference to the Brown case, that sit-ins, demonstrations, money-raising, and membership in civil rights organizations were not influenced by court decisions.
Rosenberg makes a similar argument about abortion. Roe v. Wade, decided in 1973, held that the right to have an abortion was protected by a constitutional right to “privacy.” Virtually everyone seems to think that the case had huge practical consequences for the lives of women, above all by producing a dramatic increase in the number of legal abortions. Rosenberg shows, however, that the number of legal abortions increased much more sharply in the three years before Roe than in the three years after; and it is very hard to prove that the total number of abortions significantly increased as a result of the Court’s decision. Certainly there was a decrease in the number of illegal, dangerous abortions. But, aside from this important fact, the relationship between Roe and abortion rates is extremely unclear.
Rosenberg goes further. He believes that, before the Roe decision, the country was moving swiftly in the direction of legalizing abortion. During this period, abortion laws were becoming increasingly liberal in response to public and professional opinion. After the Roe decision—and this, for Rosenberg, was no coincidence—the opposition to abortion began to grow, and there was much activity to undermine it, ranging from proposed constitutional amendments to new statutes. Rosenberg argues that the Roe decision may well have contributed to the creation of the “moral majority” that became influential in American politics during the 1980s, and to the extraordinary political success of candidates identified with conservative positions on “social issues,” most prominent among them abortion.
Reviewing decisions on other questions as well, Rosenberg concludes that the Supreme Court’s most ambitious efforts to achieve social reform had mixed results. In many respects, he shows that the Court’s decisions are far from self-implementing; they depend crucially on the acts and attitudes of others, and they may lead to social results that are the opposite of those intended by the Court’s decisions.
If Rosenberg’s analysis is not entirely persuasive, this is partly because of the difficulty of accounting for large-scale social changes. It is usually possible to show that no single factor can account for a complex event—as with the outbreak of World War II, for example, or the election of Ronald Reagan—and the fact that large social change did not follow immediately after Brown proves little. The decision may have produced deep changes throughout the country, but these may have taken longer to emerge than Rosenberg allows. Perhaps the legal prohibition on segregation filtered into public consciousness relatively slowly and brought about changes that cannot be traced, as Rosenberg tries to do, by examining the number of civil rights proposals introduced into Congress shortly after the decision. Would Martin Luther King have led a boycott against segregation in Montgomery, Alabama, in 1956 if the Supreme Court had not earlier undermined the legitimacy of segregation in the Brown case?
Perhaps Roe v. Wade gave a legitimacy to the practice of abortion that showed up not in the years immediately following the decision but later on, when the notion that abortion is a constitutional right began to pervade the culture. Indeed, the recent public outcry against new legal restrictions on abortion may be a product of the Roe decision. The effects of constitutional decisions may not become clear for many years, and Rosenberg’s criteria are hardly adequate to describe them.
The methods of current social science, moreover, may not be able to measure the influence of Supreme Court decisions as accurately as Rosenberg hopes. The principles of the Brown decision may have been deeply internalized by civil rights leaders, and blacks generally, and may have permanently altered their conception of their basic entitlements. That the case was rarely mentioned explicitly by the press does not disprove this hypothesis. Perhaps the Court’s argument against “separate but equal” facilities was seen as so self-evidently just that people did not feel it necessary to mention the case at all. It seems highly likely, to say the least, that many black people were in some way affected by a Supreme Court judgment that they were not second-class citizens under the Constitution. Certainly Martin Luther King referred on more than a few occasions to Supreme Court decisions and to the Constitution, and his arguments in his speeches and writings may have drawn moral force from the Brown decision even when the case was simply part of the background. And the Brown case helped set in motion events—Southern officials blocking schoolhouse doors, a Republican president’s reluctant use of federal troops to protect judicial decrees in Little Rock—that had an effect on the public consciousness.
Clearly, then, Rosenberg has not proved that the Supreme Court decisions he discusses had no consequences. But he has shown that there is room for much uncertainty about this matter. In any case, he has put into question the assumption of people who now believe, as Charles Garland did, that litigation is an especially promising approach to social reform. And Rosenberg has shown that courts are highly dependent on politics for implementing their decisions.
When such doubts are raised about the independence of the judiciary, it is customary to recall that federal judges have life tenure, that their salaries cannot be cut, and that they are immune from many of the political pressures imposed on Congress and the president. Justices William Brennan and Harry Blackmun, for example, confounded the expectations of presidents Eisenhower and Nixon, who appointed them. Justices O’Connor, Souter, and Kennedy have confounded expectations as well, especially in their views on abortion. All this is true and important; but it is only one part of the story. From what has been said thus far, we can also see that the Supreme Court is dependent on politics in two ways: its membership often tends to reflect the president’s will, and often it must rely on politicians and political institutions to carry out its decisions.
How does this dependence bear on our understanding of the actual and appropriate role of the Court in American government? Certainly it should make us rethink what the Court actually does and might do in the future. Does it bear on what the Court should do as well? Perhaps the Court should be urged to deliberate in a principled way on the Constitution’s meaning, while remaining indifferent to issues and controversies arising over the implementation of its decisions. If the conventional wisdom tells us that the Court should attempt to make the best possible sense out of our founding document, and if this is indeed its appropriate task, the immediate practical consequences of Supreme Court decisions may be a secondary matter.
But this would, I think, be a singularly odd view. If any role for the Supreme Court is to be defended, it must ultimately be because the Court’s assumption of that role will produce good consequences for real human beings. In the end, I suspect that all views about the Court are founded on some claim of that kind, even if those claims are carefully disquised. If a certain set of decisions produces no consequences, or bad consequences, we have to rethink those decisions.
If, for example, a judicial decision vindicating a right to subsistence—food, housing, and so forth—would be justified in principle but damaging to that very cause, this is something the justices should take into account. This is so even if such a decision would be beneficial to the particular litigants before the Court. The Supreme Court does not merely settle individual disputes, but has a central role in American government as well. Its constitutional decisions must therefore be evaluated at least in part by reference to their broader consequences. And if those consequences are harmful or trivial, our views about what the Court ought to do must be affected.
With this in mind, we might begin to recast our understanding of the role of the Supreme Court, and of the Constitution, in the American system of government. It should be clear that the Court is politically constrained by the appointment process; presidents will try to appoint people whose views reflect their own. When the Court seeks to bring about social reform, moreover, it may well be ineffective, and precisely because of its dependence on other forces, including political ones. Whether the country will respond as the Court intends is a highly contingent question, and political resistance to the Court can matter a great deal. In these circumstances, a Court that takes an aggressive position might undermine the very causes it seeks to favor.
The Court’s lack of efficacy might well count in its own deliberations. We should think of constitutional interpretation as a peculiar mixture of substantive theory and institutional constraint. The best theory of the contentious equal protection clause might, for example, argue in favor of a constitutional right to subsistence. At least some people think that if the federal government allows people to be deprived of food, shelter, and medical care, it is violating the Constitution. But even if this is plausible, the institutional constraints facing the judiciary might well lead the Court to reject an interpretation of the Constitution that would require courts to implement a right to subsistence. The substantive theory would be tempered by institutional constraints. There is nothing embarrassing, or unprincipled, about a system of interpretation in which the Court is closely attuned to its necessarily and indeed properly limited role in American govemment—and in which the Court’s interpretive practices are based in part on modesty about its own capacities.3
The members of the Supreme Court might well interpret the Constitution in a way that is sensitive to the Court’s institutional limits. The justices might, for example, reject claims for some constitutional rights in part because courts cannot plausibly vindicate such rights. An understanding of this kind might well be part of a healthy system of checks and balances. It would discipline and constrain judges at the same time that it might liberate the rest of us—elected representatives and citizens—to act in the interest of the Constitution, which would now be understood not merely as an instrument to be interpreted by the nine justices but as a set of principles designed to inform and shape public deliberation far more generally.
This view draws support from history as well as principle and social science. It points toward an understanding of the role of the Constitution in American life that is both old and new—an understanding that has been badly obscured with the outpouring of writing on the Warren Court and on the appropriate role of the judiciary. James Madison’s original goal was to create a system of deliberative democracy not one of judicial supremacy. A similar understanding can be found in the writings of Abraham Lincoln, who consistently pointed to the Constitution as a source of political inspiration, and who did so in the face of the Supreme Court’s infamous decision in the Dred Scott case, establishing the ownership of slaves as a constitutional right.
The modern Congress’s inexcusable abdication of its constitutional duties—with the flimsy excuse that legal questions are for the courts—is inconsistent with our traditional aspiration to constitutional deliberation in all governmental bodies, an aspiration embodied in the very oaths of national representatives. The Constitution’s ideals should not be defined only by the occasional rulings of the nine justices. People outside the courtroom should feel free to argue for more expansive views of those ideals. And when they succeed in getting their ideas accepted politically, the justices ought generally to be deferential. They might, for example, permit Congress to recognize a right to abortion, or a right to subsistence, even if, in their view, the Constitution contains no such right.4
When representatives or ordinary citizens are debating about the meaning of the principle of free speech, or of the equal protection clause, they are free of the constraints that face the Court. When ordinary citizens think that the current broadcasting system badly serves the constitutional commitment to public deliberation, and to a genuine diversity of views, they are entitled to call for a response by the Congress, and precisely in the interest of the constitutional principle of free speech. When ordinary citizens see that many Americans live in desperate conditions, and believe that their Constitution is inconsistent with this state of affairs, they are entitled to invoke the Constitution to insist that their government provide redress. The Constitution, in this crucial respect, need not mean what the Supreme Court says that it means. And in this understanding may lie the best hope for future reform in the name of the Constitution.
October 22, 1992
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. ↩
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. ↩
The point is elaborated in Laurence Sager, “Fair Measure: The Legal Status of Underenforced Constitutional Norms,” Harvard Law Review, Vol. 91 (1978), p. 122. ↩
I speak here of cases in which the public has decided to recognize a constitutional right that the Court has denied. I do not suggest that the Court ought to allow abridgments of what it sees as constitutional rights. But a full exploration of the difference between “abridgments” and “expansions” would take me well beyond the present discussion. ↩