In response to:
Constrain the Court—Without Crippling It from the August 17, 2023 issue
To the Editors:
Like many law professors, I read Laurence H. Tribe’s “Constrain the Court—Without Crippling It” [NYR, August 17] with great interest. My first book, Constitutional Faith (1988), analogized classic responses to the Constitution, and in particular to the Supreme Court, to basic divisions in all of the “Abrahamic” religions. One first had to decide what constituted authoritative materials: Were they texts alone or were they supplemented, as in Judaism, for example, by an oral tradition or, as in Catholicism, by doctrines developed over time? Or one could be a radical Protestant (or a Karaite Jew) and declare some version of sola scriptura. But that was only one question. The other was whether there was an institution empowered to deliver definitive resolution of such controversies as would inevitably arise over how to interpret the ostensibly authoritative materials. Does one rely on a pope or adopt the doctrine of the “priesthood of all believers,” which is inimical to institutional authority (and contributed to the savage wars of religion in the sixteenth and seventeenth centuries)?
Laurence Tribe is surely one of the most distinguished constitutional academics of the past half-century, because of both his innate talents and energy and his institutional position at Harvard Law School (from which four current members of the Court graduated). He is, however, trapped between his “protestant” desire to displace the pretensions of a highly “catholic” (and, as a matter of fact, Catholic) Court to be the “ultimate interpreter” of the Constitution and his continuing belief in at least some legitimacy for judicial authority. He cites with approval the critiques of judicial supremacy by his young colleagues Nikolas Bowie and Daphna Renan, but he is clearly perturbed by the seeming extremity of their critique. He agrees that the legal academy, including himself, was unduly influenced by the Warren Court and therefore overestimated the degree to which the Court throughout its history served as any kind of progressive force. At the same time, though, he is also worried that diminishing the authority of the Court—declaring, in effect, that it is the Wizard of Oz or, even worse, the naked would-be emperor—will open the way for tyranny, whether through executive overreach or untrammeled legislative power.
I suspect that Tribe is not alone in occupying an intellectually awkward space between a lingering respect for judicial papalism—frequently endorsed by the Court itself—and the radical protestant critique that leaves the Court offering “opinions” that are subject to rejection by those unpersuaded by its own analyses. After all, Andrew Jackson famously asserted in 1832 that opinions of the Supreme Court should “have only such influence as the force of their reasoning may deserve.” Tribe has made it clear in several previous essays for The New York Review that he (correctly) believes that decisions such as the Dobbs case on reproductive rights are entitled to no respect at all, given the inadequacy of the Court’s reasoning. And why should we feel bound by opinions whose reasoning we find completely inadequate? Was Lear correct in describing “the great image of authority: a dog’s obeyed in office”?
I suspect that Tribe is happy, as I am, no longer to be teaching introductory constitutional law, but I can’t help wondering how people who are doing so, either by choice or by assignment, are navigating the precipitous tightrope—or should it be tug-of-war?—attached to any such course in today’s world. Should one teach students to continue to view the Court as “the last word,” at least in the absence of a de facto impossible constitutional amendment overriding the Court or the propitious occurrence of timely deaths or resignations and replacements by more compatible justices? Or, on the contrary, does one present the Court in a way similar to Martin Luther’s pronouncement of the papacy as devoid of any intrinsic authority or duty to be obeyed?
It is not a new insight that the most fundamental dilemma of our present time—and not only in the United States—is the decline of any faith in authoritative institutions. Hobbes, King Lear, and, for that matter, Paradise Lost speak to us today as much as was the case in the seventeenth century. From what comes the “authority” of Supreme Court justices? Their authority, if they have it, comes from possession of office rather than mastery of nonexistent “legal science” or demonstrable extraordinary ability in “thinking like lawyers.” And it is impossible to argue seriously that “we the people” ever truly consented to the role played by the contemporary Court. But we must still ask when the motto “Question Authority,” which appealed to many of us who grew up in the 1960s, becomes a gateway to the Hobbesian nightmare of endless, increasingly violent conflict.
University of Texas Law School
Department of Government
University of Texas at Austin
Laurence H. Tribe replies:
My colleague Sanford Levinson writes elegantly but misses the mark. I can’t deny that my faith in what the Supreme Court might be at its best was strengthened by having come of age when it was indeed at its best. But he is wrong to imagine that I am “trapped” between a newfound desire to displace the Court as the Constitution’s “ultimate interpreter” and my “continuing belief in at least some legitimacy for judicial authority.”
On the contrary, as all my writings over the past half-century, including my latest piece in these pages, make plain—and as thousands of my students over the years can attest—I have never regarded the Supreme Court as the “ultimate interpreter” of the Constitution. In that regard, I have long proposed much more active roles for both Congress and the executive branch in setting forth and defending broader views of individual rights than those maintained by the judicial branch.
Indeed, far from being “perturbed by the seeming extremity of their critique,” I have always voiced doubts closely akin to those of my colleagues Nikolas Bowie and Daphna Renan about judicial supremacy. Like them, I have never failed to recognize how regressive and antihumanitarian a record the Court (even before its latest and ugliest incarnation) has compiled over the course of American history.
Nor have I ever ceased to look for ways to constrain it without crippling it. But I have never doubted how disastrous it would be for us to go the way of those countries that have stripped their highest courts of the essential authority and independence to render binding judgments on the clashes between government and individuals, or between branches and levels of government, without which—to quote Levinson—we enter the “gateway to the Hobbesian nightmare of endless, increasingly violent conflict.”
None of this is to deny that difficult puzzles confront those of us who believe both in majority rule and in minority rights, but they are puzzles that cannot be escaped by simple gestures of disagreement with the very existence of judicial power.