Judicial Review: It's Not Just for Wacky Libertarians Anymore

Julian Sanchez | June 3, 2005

I see that over at TAPped yesterday, Matt Yglesias commented on my defense of judicial tyranny from last month. (Note pundit rule 307: When one of your journalist friends makes a point of referring to you as "my friend" in print, they're probably about to observe that you "[subscribe] to a morally bankrupt fringe ideology." Fortunately, it wasn't "my good friend," which would've signalled an upcoming reference to my penchant for puppy torture.)

Anyway, Matt's main purpose is to point to this Legal Affairs debate and the "venerable tradition" of opposition to judicial review from the left, as represented there by Mark Tushnet. (If you subscribed, you'd already have Nick Gillespie's interview with Tushnet from our July ish in your hot little hands.) In the April web piece, I largely argued that judicial review ought to be congenial to people who style themselves conservatives, as a check on impulsive majorities and a mechanism that tends to slow the growth of state power. But I think there's plenty of features there that ought also to appeal to liberals.

First, my impression of Tushnet's main thesis was that the courts make less difference than we're usually led to believe: That anything there's a sustained and intense public desire for will eventually make its way past the courts. Judicial review, in other words, is good at checking impulsive majorities—ill considered legislation that lashes out at some unpopular minority—but less so their considered will. And if you look at the memorable cases of the last century of jurisprudence, it's hard to see what (on net) liberals have to dislike about it. The courts have been far less vigorous than I might like in cabining in economic regulation to that authorized by the enumerated powers in 1.8. They've been a lot more aggressive about blocking restrictions on "indecent" or otherwise unpopular speech, about creating safeguards for criminal defendants (though, again, less than I might like when it comes to the Fourth Amendment and the drug war), and about stanching the bleed-over of religion into politics.

This may sound a bit panglossian ("conservatives should love it! and liberals too!") but I don't think there's a real contradiction: To the extent that the Constitution is the focus of an overlapping American consensus—basic principles with which liberals and conservatives both are supposed to pretty much agree with—both should on net benefit from a system where some entity relatively shielded from short-term political pressures can block deviations from that consensus, even when the blocked deviations are sometimes in the direction one prefers. Think of it as enforcing the cooperative solution in a Prisoner's Dilemma: You may not like being stopped from defecting, but it's sure better than the outcome that obtains when everyone can defect.

Taking a brief look at some of the sources Matt cites: Jeremy Waldron argues (inter alia) that "liberal outcomes" in other countries "make nonsense of the claim that popular majorities will not usually uphold the rights of minorities." I wish I were as sanguine, but the annual survey conducted by the First Amendment center of popular regard for free speech rights makes for unsettling reading on this score.

There's also a point I think both Waldron and Tushnet give too little weight. Tushnet emphasizes the relative importance of cultural and political shifts, as opposed to judicial decisions, in driving policy, while Waldron's analysis takes as a background assumption a set of liberal democratic norms and institutions congenial to robust democracy (in which free speech is implicated) and minority rights. But while Tushnet is right enough to observe that judicial doctrine and the public political culture are not independent variables, the feedback runs in both directions here. That is, if people are committed to liberal values (and, again, just how much that's true is an open question), mightn't it be at least in part because we've got not just a Constitution that sets out those principles, but a judiciary that routinely reaffirms them in relation to contemporary controversies?

Comments

|6.3.05 @ 9:03PM|#

a Constitution that sets out those principles, but a judiciary that routinely reaffirms them

I wonder what those judges views are on water balloons and golden showers?

(link courtesy of spartikus at Tacitus)

|6.3.05 @ 9:47PM|#

No wonder Canadadian politics are so much more liberal than ours; if Bill Frist and Tom Delay could push through "not withstanding" bills every time they disliked a decision, and had to keep passing and passing them to get the outcomes they wanted, the Democratic Party would be in the all-but-permanent majority, and/or the GOP would look very different.

Imagine five Schiavo bills every single year, every time Republicans and conservative Dems constituted a majority. Can you say Majority Leader Ted Kennedy?

|6.4.05 @ 2:38AM|#

Since we're talking about the courts, I could not resist adding this interesting info:

http://www.intheagora.com/archives/2005/06/feddie_says_reh.html

Info on McConnell himself can be found here:

http://www.law.utah.edu/faculty/bios/mcconnellm.html

gaius marius|6.4.05 @ 9:02AM|#

To the extent that the Constitution is the focus of an overlapping American consensus�basic principles with which liberals and conservatives both are supposed to pretty much agree with�both should on net benefit from a system where some entity relatively shielded from short-term political pressures can block deviations from that consensus, even when the blocked deviations are sometimes in the direction one prefers.

this is why, mr sanchez, your (and my) view is slowly fading from sight. neither side fundamentally believes in checking power. both believe fervently in manifesting "the will of the people" -- and have increasingly little concern for obeying law that offers resistance. take for example the illinois legislature -- which, in a harbinger of many to come, has simply started passing unconstitutional bills for nakedly populist purposes. so much for the rule of law being upheld.

worse, this is the "considered will" of the parties and the people -- justices stand in the way of the people tearing down the rule of law, and are immediately excoriated for being part of some "conspiracy" to deny "the people" of what is "right".

i fear we're witnessing the breakdown of social order on a grand scale in america, precisely because people like matt yglesias and james dobson are coming to the same conclusion about law and tradition from opposite ends, and neither in the slightest seems to fear tyranny of the majority finally displacing the politics of consensus and compromise as they should.

|6.4.05 @ 10:54AM|#

if people are committed to liberal values .... mightn't it be at least in part because we've got not just a Constitution that sets out those principles, but a judiciary that routinely reaffirms them in relation to contemporary controversies?

I am scared because I probably agree with this. Scared because it sounds like a variation on the old "isn't it true that [eg Christian, conservative, envrionmental etc] moral standards in society are sustained by the laws upholding them."

To paraphrase: "if people are committed to the Ten Commandments .... mightn't it be at least in part because we've got not just a Constitution that sets out those principles, but a judiciary that routinely reaffirms them in relation to contemporary controversies [and puts up statues of them]?

|6.4.05 @ 10:55AM|#

CORRECTION of above:

I should have said: "I am scared because I probably agree with this. Scared ABOUT MY AGREEMENT WITH IT because it ALSO sounds like.....

|6.4.05 @ 10:58AM|#

"morally bankrupt fringe ideology"

Is that Chapter 7 or 13 moral bankruptcy?

|6.4.05 @ 12:39PM|#

Is that Chapter 7 or 13 moral bankruptcy?

I'd go for 7 but you never know with the new rules.

|6.4.05 @ 2:16PM|#

Man, what a dick. I don't agree with Yglesias' ideology, but I wouldn't go around calling it "morally bankrupt." Can't we consider our opponents "wrong" without them being morally deficient?

I would reserve "morally bankrupt" for ideologies that fall outside of the bounds of classical liberalism: communism, fascism, theocracy. Republicans, Democrats, libertarians, even Western European-style social democrats are all within the bounds.

|6.4.05 @ 8:07PM|#

Yes, that was a cheap shot. Left libertarianism is not morally bankrupt.

And that's all I have to say.

|6.4.05 @ 9:46PM|#

Left libertarianism is not morally bankrupt.


Joe gets the low blow in on the natural law kooks.

R C Dean|6.6.05 @ 10:33AM|#

Bingo, gaius! Sounds like you and I are both strict constructionists when it comes to the Constitution.

The fundamental failure of the judiciary is not its tilting to right or to the left in protecting some transient "consensus".

The fundamental failure of the judiciary is its refusal to apply the Constitution as written, including the parts about enumerated powers, and the bits that say "Congress shall pass no law."

|6.6.05 @ 11:52AM|#

"First, my impression of Tushnet's main thesis was that the courts make less difference than we're usually led to believe: That anything there's a sustained and intense public desire for will eventually make its way past the courts. Judicial review, in other words, is good at checking impulsive majorities?ill considered legislation that lashes out at some unpopular minority?but less so their considered will."

Exactly my thoughts. I'm evolving into a constitutional cynic over time. Judicial review has the potential to be good at providing guidance for issues that aren't very weighty, but it can't address truly popular ideas or refute common practices that are accepted norms. That is why the courts talk themselves into absurd levels of specificity on big issues - they don't to be the ones to dismantle judicial review by rolling back some regulatory power of government people are happy with.

The bad part, to me, is in argument by precedent. Instead of just admitting that a previous decision was based largely on not wanting to confront a big issue directly, the court appeals to precedent for current decisions. The logic of the lazy interpretation is what winds up enduring - broad readings of commerce clause and the absurd claim that 'promote the common welfare' trumps every other line in the document are two of these residuals.

gaius marius|6.6.05 @ 4:56PM|#

Sounds like you and I are both strict constructionists when it comes to the Constitution.

i think "constructionism" and "originalism" is just a scam perpetrated on the gullible, mr dean. the much-hated "judicial activism" it rails against is just judges doing their jobs -- they are supposed to tailor the general law to the particularities of a case, and strike down the unlawful urges of the people and congress and the president.

originalism (a fraud of a name, btw) means simply limiting the power of the courts to stand in the way of the congress, in my experience. if it ever really meant something more than rousseauian majoritarianism, i didn't see it.

gaius marius|6.6.05 @ 5:01PM|#

Judicial review has the potential to be good at providing guidance for issues that aren't very weighty, but it can't address truly popular ideas or refute common practices that are accepted norms.

mr ligon, the problem is that judicial review is what may stop the people from committing national suicide. the Destroy America Now Act may have 90% popular support, both houses of congress and the president behind it -- but one hopes that, if it is unconstitutional, it can still be averted.

there is massive need for institutions that are slow to adopt popular will, because popular will is notoriously ill-considered, vacillatory and frequently self-destructive. the founders certainly knew that.