The Myth of the Imperial Judiciary: Why the Right is Wrong about the Courts

1 The Imperial Judiciary and Its Malcontents

The Imperial Judiciary and Its Malcontents Prologue: Strange Bedfellows Mark Tushnet is a well-known professor of constitutional law at Georgetown University. In 1998, he published an article in the venerable democratic socialist quarterly Dissent entitled “Is Judicial Review Good for the Left?” He began by expressing puzzlement that “[m]any liberals have warm and fuzzy feelings about judicial review,” the power according to which courts may declare statutes to be unconstitutional and void.1 Such feelings, he asserted, were quite unwarranted: Looking at judicial review over the course of U.S. history, we see that the courts have regularly been more or less in line with what the dominant national political coalition wants. Sometimes the courts deviate a bit, occasionally leading to better political outcomes and occasionally leading to worse ones. Adapting a metaphor from electrical engineering, we can say that judicial review amounts to noise around zero. It offers essentially random changes, sometimes good and sometimes bad, to what the political system produces.2 This is a conclusion guaranteed to dampen warm and fuzzy feelings: the courts follow the election returns, and the election returns certainly do not always follow the liberals. Yet, Tushnet ends his article with this intriguing speculation: Things would be different, of course, if we had better judges. But we’ll get better judges only if we have better politics. And if we have better politics, we might not need better judges.3 1 11 Tushnet then spent some time pondering how to construct a “better politics .” In 1999, he published the fruit of his ruminations, the title of which sets forth his program: Taking the Constitution Away from the Courts. Why does Tushnet wish to take the Constitution away from the courts? Because if we replace conventional judicial review with “populist constitutional law,” which will “distribute responsibility for constitutional law broadly” throughout the polity, great bounty for the left will ensue.4 Tushnet has warm feelings for populist constitutional law, but he is more than a little fuzzy as to what exactly it is and how it will operate. It will, he says, allow “the public” to “participate in shaping constitutional law more directly and openly.”5 How? By employing “discussions among the people in the ordinary political forums.”6 This will be “a self-creating activity in which the people of the United States daily decide whether to continue to pursue the course we have been pursuing.”7 As Oscar Wilde said of socialism , populist constitutional law is clearly going to take a lot of evenings. To put it mildly, this is something less than a comprehensive operational plan. But I’m not sure that the details matter all that much to Tushnet . What clearly does matter is that populist constitutional law holds forth the prospect of ending the agony of the American left. Specifically, “[f]reed of concerns about judicial review, we [may] be able to develop a more robust understanding of constitutional welfare rights, which are recognized in many constitutions throughout the world.”8 Thus, the result may be to remedy “[o]ur economy’s failure to satisfy the basic needs of many people.”9 In other words, populist constitutional law may bring European social democracy to our shores. Lino Graglia is a law professor at the University of Texas. I am quite sure he would not quarrel with being characterized as one of the most conservative legal academics in the United States. One would think he wouldn’t have a good word to say about the likes of Professor Tushnet, a man whom he describes in a 1999 letter to the journal Commentary as “a self-described Marxist.”10 But, in the same letter, Graglia goes on to laud Tushnet as “an exceptionally able, independent, and original thinker.” And, even as he realizes that Tushnet’s book is rooted in dissatisfaction with the fact that the Supreme Court “can no longer be relied on to enact a left-liberal agenda,” Graglia contends that Taking the Constitution Away from the Courts is “an extremely valuable contribution to the cause of limiting judicial power.” And that cause, says Graglia, is a noble one. It is the Supreme Court, after 12 | The Myth of the Imperial Judiciary all, “that has deprived the states of the power to restrict abortion, provide for prayer in schools, aid religious schools, limit the distribution of pornography, assign students to neighborhood schools, maintain an effective...