That Eminent Tribunal

Judicial Supremacy and the Constitution

Christopher Wolfe

• Publisher: Princeton University Press
• Year: 2009
• Print ISBN: 9780691116686, 9780691116679
• eBook ISBN: 9781400826285
• Topic: Jura
• Subtopic: Öffentliches Recht

The role of the United States Supreme Court has been deeply controversial throughout American history. Should the Court undertake the task of guarding a wide variety of controversial and often unenumerated rights? Or should it confine itself to enforcing specific constitutional provisions, leaving other issues (even those of rights) to the democratic process?



That Eminent Tribunal brings together a distinguished group of legal scholars and political scientists who argue that the Court's power has exceeded its appropriate bounds, and that sound republican principles require greater limits on that power. They reach this conclusion by an interesting variety of paths, and despite varied political convictions.


Some of the essays debate the explicit claims to constitutional authority laid out by the Supreme Court itself in Planned Parenthood v. Casey and similar cases, and others focus on the defenses of judicial authority found commonly in legal scholarship (e.g., the allegedly superior moral reasoning of judges, or judges' supposed track record of superior political decision making). The authors find these arguments wanting and contend that the principles of republicanism and the contemporary form of judicial review exercised by the Supreme Court are fundamentally incompatible.


The contributors include Hadley Arkes, Gerard V. Bradley, George Liebmann, Michael McConnell, Robert F. Nagel, Jack Wade Nowlin, Steven D. Smith, Jeremy Waldron, Keith E. Whittington, Christopher Wolfe, and Michael P. Zuckert.

CHAPTER 1

Is the Constitution Whatever the Winners Say It Is?

Gerard V. Bradley

IT WAS THE day before Roe v. Wade’s¹ twenty-fifth birthday, the day most of us first heard of Monica Lewinsky. But on January 21, 1998, two tales of sex and constitutional crisis were told in Washington, D.C. Here is the one you have heard less about.

On that cold, clear morning Missouri senator John Ashcroft convened a hearing of his Subcommittee on the Constitution. The subject was Roe. The occasion was noteworthy, in part, for the appearance of “Jane Roe”—Norma McCorvey—as a witness against the holding that the Supreme Court entered in her favor a quarter century before. More telling than Ms. McCorvey’s testimony was an exchange between the chair and Georgetown law professor Michael Seidman. Seidman had come not to bury Roe v. Wade, but to praise it. Ashcroft put this question to him: now that slavery is outlawed, is there a circumstance other than abortion where the law gives one person life or death authority over another?

Seidman did not directly answer his distinguished interlocutor. But he defended Roe, in a three-part argument, the last part possessed of two sections. The whole ensemble is a nearly perfect expression of what has been on offer from the Supreme Court, not just on abortion but about much of constitutional law since Roe. In fact, Seidman’s apology succinctly explained the deepest justifications for the Court’s whole privacy jurisprudence over the last half-century, and for the Court’s authority to make it.

Here is Seidman’s tour de force.

PART 1

Suppose the state of Missouri were to decide that it was underpopulated. And in order to deal with the underpopulation, the state decided that they were going to, against the will of women, artificially inseminate them and force them to bear children that they don’t want to bear.²

Get it? Senator Ashcroft did not. “Professor,” he said, “that’s sort of an interesting hypothetical.” But what has it to do, he wondered, with the uniqueness of a private franchise to terminate the lives of the unborn?

Strange as Seidman’s response thus far considered may seem, he merely adapted a statement of the Supreme Court. In Planned Parenthood v. Casey (the 1992 case that reaffirmed Roe), three Republican appointees—so-called centrists—said that, but for the abortion license established in Roe, “the state might as readily restrict a woman’s right to choose to carry a pregnancy to term as to terminate it, to further asserted state interests in population control, or eugenics, for example.”³

And so, it seems, we are somehow to equate forced impregnation with abortion with the freedom to bring a child to term and delivery. Or, more exactly, we are to fear that the “state” does.

Casey may mark the high (or low) point of an improbable judicial agnosticism about moral values. But not its birthday. Justices have spoken this odd language of moral equivalence since the end of World War II, though with settled frequency as part of the ratio of cases only since the sixties. The classic statements include “[O]ne man’s lyric is another man’s vulgarity” (to sustain a ruling in favor of public display of this sentiment:“F——k the draft”).⁴ Also memorable is William O. Douglas’s passionate defense of constitutional protection for publications “of value to the masochistic community or to others of the deviant community.”⁵ One of my favorites in this line of colorful phrases never made it into a Court opinion. A brief in the important but neglected Burstyn v. Wilson case said that “one man’s sacred cow is another man’s casual repast.”⁶

Now as a purely descriptive matter, there is some truth in these assertions. People do in fact believe all sorts of things. But the justices have not been doing sociology; they have not been merely describing. They mean by these statements and others like them to articulate a theory of value. That theory is a subjective one. The Supreme Court over the last generation or so has declared that no one exercising public authority may act on the basis of the conviction that, regardless of what somebody believes about, say, abortion or adultery, such acts (as abortion or adultery) are objectively wrong, and worthy of discouragement by the state for that reason (though not for that reason alone). Note well: the Court does not speak solely for itself, and announces no rule of peculiarly judicial restraint. The Court announces a rule of constitutional law. Legislators and governors and school board members and the President and everyone else acting as part of the state shall act as if forced impregnation is the same as abortion as bringing a baby to term.

We shall revisit this theory of value, stated a little differently, when we come to part 3b of Seidman’s argument.

Why? That is, why has the Court adopted and imposed upon others this particular theory of moral value? Sex, mostly. More exactly: at least since the mid-1960s the justices have determined to liberate the libido from legal constraints rooted in the moral common sense of the American people. (Why they have decided to do so is a question whose answer is beyond the scope of this paper.) All the odd talk about the relativity of moral judgment—from Seidman, from the Casey opinion writers, from William O. Douglas—is the answer to this question: how could the Court manage to pull off such an audacious undertaking?

Here is the predicament that the Court presented itself. In Roe and Casey the justices wanted (for reasons we leave aside) to justify liberty for acts that most Americans morally condemn, and would legally prohibit, on grounds that include precisely these acts’ objective immorality. The Court’s odd theory of moral equivalence nullifies this popular judgment by declaring that the asserted objectivity is illusory. The Court says: assertions of moral objectivity amount to, or underwrite, the imposition of one’s value judgments upon another. “One man’s lyric . . .” In such case, the imposition is an unconstitutional abridgement of liberty.

But upon what did—does—the Court base its declaration? The place to begin the search for the requisite authority is the Constitution.

PART 2

Now, the fact of the matter is, the Constitution says no more about the [forced impregnation] than it says about abortion. There’s nothing in the Fourteenth Amendment that says a word about it, nothing in the intent of the framers that we can find that they thought about that problem.

Is this not a concession that the Court’s rulings in favor of moral subjectivism are adrift from the constitutional text, as understood by the “framers” (that is, those who put the text into the Constitution)? Is not the concession necessary, because the proposition conceded is obviously true?

Casey is one important piece of evidence for the advisability of the concession. In that case the “centrists” (though on this point they could easily have spoken for almost all those who have served on the Court since World War II) derived a principle of decision—a broad liberty of self-definition—not from the text or history, but from their own decisions going back twenty-five years.⁷

Almost any Establishment Clause case is a good illustration, too. A prominent academic lawyer’s struggle with its text exemplifies the struggles of the Court. Yale law professor Stephen Carter describes himself as generally an originalist in matters of constitutional interpretation.⁸ He concedes an important point about the meaning of the Establishment Clause: that provision was designated by its framers not to disestablish any church, much less for the sweeping purpose—to separate religion

from public life—that the Court has recently found there. The historical evidence rather shows that the clause was not meant to lay down any concrete norm having to do with church and state. The text, which prohibits “laws respecting an establishment of religion,” protected state autonomy from the national government in matters of religion. The Establishment

Clause was a jurisdictional directive: states were permitted to retain their establishments of religion, if that was their preference, and Congress was denied the authority to interfere.

Carter concedes that this interpretation of the Establishment Clause is sound. But he does not approve of it. So, he says, the “original understanding may no longer bind because contemporary reality is so sharply discontinuous with the world of the Founders.”⁹

Maybe the “worlds” are “discontinuous.” Maybe not. The question is, however, how does a judge’s reckoning (for Carter means to endorse the recent judicial turn away from the historical understanding of the clause) of such large matters make for judicial amendment of the Constitution?

Someone might object that strict adherence to the Constitution’s text does not exhaust the possibilities of meaningful, and adequate, constitutional fidelity. Indeed, the main direction of the Court’s argument for the content of the new master norm—the agnosticism of the Casey court—is fidelity to something deeper and broader and more important than the text, but still meaningfully in, or close enough to, the Constitution to justify judicial imposition of it upon a recalcitrant polity. And so, the canonical justification for the Court’s nonestablishment doctrines and tests has not been the text but the “principle” or value the text expresses (or is otherwise related to): separation of church and state, or a cognate principle.

Is the objection valid? There is indeed an important distinction between norms, rules, or standards—all of which are specific enough to actually guide decisions in concrete cases—and principles. A “norm” (or rule, or standard) capable of guiding decision annexes, to some specific description of an act, an evaluative directive: this act—described thus and so—must not (or must be or may be) done (under the following conditions, by these specified persons). “Jaywalking is prohibited”is a rule, not a principle, and it says do not walk across the street except at corners.

A “principle” justifies or explai...

Table of contents

• Table of Contents
• Contributors
• Introduction
• CHAPTER 1 Is the Constitution Whatever the Winners Say It Is?
• CHAPTER 2 Nationhood and Judicial Supremacy
• CHAPTER 3 “Casey at the Bat”—Taking Another Swing at Planned Parenthood v. Casey
• CHAPTER 4 Antijural Jurisprudence: The Vices of the Judges Enter a New Stage
• CHAPTER 5 Judicial Power and the Withering of Civil Society
• CHAPTER 6 The Academy, the Courts, and the Culture of Rationalism
• CHAPTER 7 Judicial Moral Expertise and Real-World Constraints on Judicial Moral Reasoning
• CHAPTER 8 Toward a More Balanced History of the Supreme Court
• CHAPTER 9 Judicial Review and Republican Government
• CHAPTER 10 The Casey Five versus the Federalism Five: Supreme Legislator or Prudent Umpire?
• CHAPTER 11 The Rehnquist Court and “Conservative Judicial Activism”