Constitutional Disorder in the Era of Judicial Supremacy: What Can be Done Now


If we want to lower the stakes of winner-take-all Supreme Court battles, we must search for justices who reject the notions of judicial activism and judicial supremacy. The second in a two-part series.

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In the first installment of this discussion, we examined the Supreme Court’s pretensions to being the final and authoritative interpreter of the Constitution. The current dispensation, whose roots go back more than a century and which the Court itself declared to be orthodoxy a half century ago, has three elements. First, every part of the Constitution’s letter and spirit is in principle considered “enforceable” by the judiciary. Second, every other public official is bound, by his oath to the Constitution itself, to treat the Supreme Court’s pronouncements on the Constitution as binding on himself. And third, there are generally thought to be only two ways for other public officials and citizens to respond to those (inevitable) rulings in which the Court gets the Constitution wrong: either amend the Constitution, or persuade the justices to change their minds and overturn their own precedents.

Taken together, these now-orthodox teachings on judicial power mean that one of our institutions—the Supreme Court—has an effective authority to change the meaning of the Constitution among its ordinary powers, and the nation is governed by any change thus made. The rest of us have to resort to the extraordinary amendment power of Article V, ultimately securing legislative majorities in three-fourths of the states, and still we may only have given the Court new material it can give almost any shape it likes. A moment’s reflection should suffice to tell us that there is something seriously wrong with this state of affairs.

But there is no basis for any of the elements of this judicial supremacy in the text of the Constitution, in the original understanding of judicial power at the time of the founding, or in the early decades of the Supreme Court’s own jurisprudence. It might be argued that judicial supremacy has acquired some measure of legitimacy in our own day by virtue of popular acquiescence to its terms. To this we may reply in two ways. First, it would be difficult to show that the American people have knowingly acquiesced in judicial supremacy, if by that we mean they have (even tacitly) consented to the periodic alteration of their fundamental charter by willful, unaccountable judges. Second, even if judicial supremacy had been knowingly embraced by the people—rather than merely tolerated by them through a combination of neglect and misunderstanding—the public could nonetheless change its mind at any time. If legitimacy lives on the strength of popular opinion, it can die the same way.

Because of the nature of the Supreme Court’s work—initiated by aggrieved litigants and not the justices themselves, carried on in esoteric language, and seeming to matter much even to politically aware citizens only two or three times a year—the public occasions and opportunities to reconsider the scope of the Court’s authority in our constitutional order come few and far between. One such occasion occurs when a vacancy on the Court must be filled. Now a great deal of attention is fixed on the Court’s business: its past decisions take on fresh importance, its future direction seems to be somehow up for grabs, and interest in the outcome runs very high across all sectors of society. In the conventional account, this is the “one chance” the rest of us have to affect the course of constitutional decision-making until the next such vacancy occurs. That is a dangerously false way of thinking. But it is true that an opening on the Court gives us an opportunity to re-examine why we are in the habit of thinking such dangerously false things—and perhaps the opportunity to change our habit for the better.

The hearings of the Senate Judiciary Committee, in which nominees to the Court appear to testify, hold much promise, even if it is not often realized. Too often the hearings take on an atmosphere made up of roughly equal parts of ignorance, arrogance, grandstanding, and disingenuousness. But they are the process we currently have, and it is difficult to think of another that would serve as well.

Two recent books have considered the nomination process and suggested some reform of it. In Confirmation Wars (2006), journalist Benjamin Wittes so despairs of the testimony of judicial nominees' shedding any meaningful light on their future behavior as justices that he would dispense with it altogether. Instead, he would have the Senate use its staff to interview nominees in private, on the supposition that “more professional, sharper questioning” would result; and while he urges presidents to “stare senators down” and shield judicial nominees from open testimony, he urges the Senate to throw its weight around too, perhaps by demanding that presidents choose their nominees from a list pre-approved by the majority of the senators.

As Edward Whelan of the Ethics and Public Policy Center argued in a review of Wittes’s book, these recommendations “would likely make the process worse.” Our main trouble, Whelan writes, is that “too few senators have both a sound understanding of what good judging is and an interest in promoting it,” and this defect is not likely to be corrected by delegating more of the process to their staffs and converting their relations with the president into a straight-up political struggle over which names belong on a list of justices-in-waiting.

A deeper problem with Wittes’s argument is that he regards the current process as threatening to the independence of the federal courts. But there is independence, and then again there is independence. What do we mean by it? Much of our current constitutional disorder can be aptly described as a surfeit of judicial independence. Wittes believes that too many senators have gotten into the habit of asking questions that a future justice dare not answer—about his or her view of Roe v. Wade, for instance—because to answer would be to make a “commitment” that contradicts the duty of a judge to be fair and open-minded about the issues brought before them by the parties to a case. But the expression of an opinion is not a “commitment” even when offered under oath, and if a nominee has a professionally considered opinion of a case like Roe, whether he has previously published it or not, there is no sound reason in law or ethics why it cannot be openly stated in a committee hearing if the question is asked. A colloquy on Roe or any other past decision is not strictly necessary, and might not be the best avenue into a fruitful dialogue about the scope of judicial power. But we could do worse. And it is wrong to think of discussions of particular cases as merely result-oriented on the part of senators. While some senators may not get past a concern only with results—thinking of the Court as just a political institution to be won or lost—others may see correctly that cases like Roe are emblematic of major trends in the aggrandizement of judicial power, and can open up a real discussion of the role of the courts in our political life and whether we aren’t paying too steep a price for overinflated notions of judicial independence. The cases, after all, are what it’s all about.

The second book worth mentioning is The Next Justice (2007), by Princeton provost and legal scholar Christopher Eisgruber. Unlike Wittes, Eisgruber does not want to jettison the testimony of nominees before the Judiciary Committee, and he even suggests the sorts of questions he would like senators to ask. Unfortunately, his questions aren’t very good ones. The fault lies in other arguments Eisgruber makes: that judicial restraint is virtually impossible, indeed an indefensible idea; that originalism is a “blind alley” and thus we are stuck with judges imposing their own “values” on the Constitution’s “abstract moral language”; and that we must therefore choose our inevitably activist judges on the basis of “judicial philosophies” that are fundamentally political in nature. (In truth, these arguments are so underdeveloped in his book that “assertions” might be a more accurate description.) Eisgruber attempts to distinguish between “judicial philosophy” and mere political ideology in such a way as make the former seem more respectable, perhaps because he realizes that otherwise his argument is an invitation to relentless political bloodletting over the courts. But on its own terms, his distinction is prone to collapse under the slightest pressure, propped up only by a few decayed institutional norms that hardly amount to very real constraints on the ideological predilections of activist judges.

Simultaneously surrendering to judicial supremacy and judicial activism, Eisgruber concludes his book by calling for the appointment of “moderate” Supreme Court justices. He defines moderation as “an open-mindedness toward novel claims of constitutional justice brought by disadvantaged groups or persons, and a lively and thoughtful understanding of the limits of the judicial role.” This sounds anodyne, not to say anesthetic. But for Eisgruber, like some other scholars who call for “moderate” uses of judicial power, what is meant by “limits of the judicial role” turns out to be a sense of caution about how far the uses of judicial power can be taken before the caterwauling of the people becomes too unbearable for the judges’ ears. It tells us a great deal, after all, that his models of moderation are Justices Sandra Day O’Connor and Stephen Breyer, neither of whom is known for a modest conception of the judicial function that the framers would recognize.

With a scaffolding like this, it is no wonder that most of Eisgruber’s suggested questions seem designed to elicit statements from Supreme Court nominees about their politics. He wants to know what “values or purposes” they would bring to the exercise of judicial review; “when and why” they think “it is a good thing” for judges to use this power; what evidence they can give that they are not “doctrinaire ideologue[s]”; and what they believe about the duty of judges when the constitutional text is “unclear” or when rights are claimed that do not appear in the text at all.

These questions are all about the nominee’s “interior life,” so to speak—about what he or she can dredge up from the stew of inchoate feelings, lifelong prejudices, and more or less coherent ideas that all of us act on in political life. But these matters ought to be of no interest to us. We ought instead to be interested in what our future Supreme Court justices think about the meaning of the Constitution—a thing altogether outside themselves, with its own integrity, content, and history. Eisgruber seems to believe that the occasional difficulty of constitutional interpretation, and the “controversial” character of all answers to the difficult questions, together mean that neutrality and restraint in constitutional law are impossible and/or undesirable. But this is a perfect non sequitur. If the Constitution has its own content and integrity, then there are right answers to the questions the justices face. That the justices often disagree is only a sign that the answers are not easy, or are contested for some good or bad reasons—not that right answers are nonexistent or unknowable.

It does no real violence to Eisgruber’s argument to restate it this way: since all judges will be to some degree bad ones, let us at least have moderate justices, the least bad sort, who are offensive to the smallest number—or at least to Christopher Eisgruber. Thus does he convert a debate over the “next justice” into an essentially political dispute over conservatism, liberalism, and some unhappy medium between them called “moderation.”

We should instead be committed, and urge senators to be likewise committed, to finding out if a nominee has what it takes to be a good judge. Wittes and Eisgruber are right, however, that we will not find that out if senators limit themselves to exacting statements from nominees that they will “interpret the law, not make it,” or that they will play the “umpire” and not try to score for either side in the game. Every nominee will say these things; nearly all will even mean them. Nor should senators try to play a cat-and-mouse game about whether certain cherished rulings are “super-precedents” or whether Congress is owed some measure of “deference” when it has gone through extensive fact-finding procedures in passing legislation. Such lines of questioning do nothing to put a dent in the carapace of judicial power.

What senators owe the public is a frank and searching public conversation about the growth of judicial power over the course of our history. I will not presume here to detail all the sorts of questions that they should ask. But perhaps a good starting point would be to invite the nominee to offer some reflections on Cooper v. Aaron, the 1958 declaration of judicial supremacy we discussed in our first essay. Did the justices in Cooper have a correct understanding of the Supreme Court’s relation to other branches of government? Did they understand the Marbury precedent they characterized as establishing judicial supremacy? What about the apparently contrary view taken by Abraham Lincoln in confronting the Dred Scott ruling? Which view—an authoritative judiciary or the institutional equality of the three branches of government in their own spheres—gives the best account of the Constitution our forefathers entrusted to us?

In the era of judicial supremacy, our whole constitutional system is disordered by the prevailing view that the nation’s governing charter is fundamentally the property of unelected, unaccountable judges with power to shape and reshape it as they see fit. When the Constitution is “community property” again, we will all be much better off, even the justices themselves. In one sense, too much is at stake in judicial nominations so long as we continue to believe this disfiguring myth. We must struggle endlessly over getting the “right” judges—or the “left” ones, as the case may be—until we accomplish the one thing needful, a real renaissance of authentic constitutionalism. Only by raising the stakes in judicial nominations can we have any hope of lowering the stakes in the six dozen or so cases that the Supreme Court decides each year.

Matthew J. Franck is professor and chairman of political science at Radford University and a 2008-09 visiting fellow in the James Madison Program at Princeton University.

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