THE řEOPLiTHEMSELVES The Chief Justice's history tSj as we have seen, deeply problematic. But tVtat matters less than the neat way this passage encapsulates the overrid" ing jurisprudence of the modem Supreme Courtr a jurisprudence that treats constitutional litnirs as synonymous with judicial enforcement and that, as * result, calls for the Court to adopt an aggressive stance vis-a-vis the political branches. 9 As an American POPULAR CONSTITUTIONALISM, CIRCA 2004 ★ * * The present Court's activism is best understood as the latest instance of a recurring pattern in American politics. For more than two Centuries, every reaffirmation of popular constitutionalism has predictably been followed by efforts to restore or enlarge judicial authority. In each instance, a supposedly tamed Court slowly extended its reach, usually starting with small stepsh then quickening the pace as its confidence grew in respunse to public acceptance or indifference. In each instance, the Justices eventually went too far, seeking to control matters at the heart of contemporary politics and precipitating j confrontation with the political branches that called upon Americans 10 decide yet again whether judges should have so much say over their lives, Americans in the past always came to the same conclusion: that it was their right, and their responsibility as republican citizens to say finally what the Constitution means. The question isr would Americans today do the same? Are we still prepared to insist on our prerogative to control the meaning of our Constitution "Leaving ihi' Curt of Th-it I.ihtrtiti to Their Wiser Rulers* To lihi.cn m 1 iiriirnL|m»Mi v |>■ >liEn >ii iU'h.Ltr, imh- kis to i!iink rise answer must be HQ Whv eW hm the jijj|HHiL and the current hobbling of federal power to remedy discrimination all somehow shrink into insignificance. We see it in histories that ignore resistance to rhe Court's view of the Constitution, unless it is to demonize and disparage the opposition as populist excess or political opporninism. We see it in the fiercely hostile reactions to evidence that the practical significance of even the Court's few genuine contributions (like Brown) may have been exaggerated. And wc see it. above all, in the tendency to minimize moments of popular constitutionalism, to portray opposition to the Court as something rare, exceptional, dangerous, and revolutionary: an act of civil disobedience to properly constituted authority. It could be, of course, that what looks like widespread acceptance of judicial supremacy is nothing more than evidence that people are not unhappy with the Court in the way that provoked earlier controversies. Pressure for action against the Warren Court was building in the late 1960s, for example, until what might have become a dramatic confrontation was avoided by Richard Nixon s good fortune in being handed four quick appointments. The newly ariwi ruled liurgcr Court WU still ftctivii.r 1"t-■ dev-ribe j court that fab-riCttted the law of *cx equality, invented a right to abortion, ami -inn k down ihe death ueiultv in ,uiv Other CtfTOI Would be 1 anions), but it somehow never jiwmeil k|uitf un revolutionary u« it* prcdt?n?uut. The mufct n .1. lung dr. 1 THE. PEOPLE THEMSELVES POPULAR CONSTITUTIONALISM, TIKI \ ii in i sions, like Roe v. Wade and Furman v. Gtvrgiu, came early in Burgers tenure, and the Court quickly moderated its tone by backing away from theit more radical implications. And, in the meantime, the Nixon appointees were generally successful in tempering or undoing much of what the Warren Court had attempted in the domain of criminal procedure, which had become the chief source of controversy by the end of Earl Warren's tenure. A similar story can be told to explain the absence of popular resistance to the new activism of the Rehnquist Court, Since 1995, trie tile Courts "federalism revolution" began in earnest, the Justices have struck down mainly minor provisions of statutes enacted prior to 1994, the year the Republicans regained control of Congress. As a consequence, not only have the laws held unconstitutional been insignificant—especially by comparison to such things as the Second Bank, the Missouri Compromise, or the New Deal—but by the time the Court acted, these laws also lacked strong political support from the electorate. The absence of a backlash thus indicates, at worst, public indifference to the Courts actions, and it could even reflect popular endorsement, Outside the liberal academy and the ever shrinking liberal wing or the Democratic parts', in other words, it may simply be that no one thinks the Rehnquist Court is doing anything all that wrong.4 Even if accurate, as seems plausible, this account is missing something crucial. For implicit in stories of this nature is the assumption that a doctrine like judicial supremacy is irrelevant and epiphenomenal. All that matters is whether people agree or disagree with the Courts results. So long as they like the outcomes, or at least do nor dislike them strongly enough to drain the Court 's general reservoir of good will (what social scientists refer to as. ""diffuse support"),5 the decisions stand. The Justices may, at some point, go too far too often on matters that people care about, and when that point in reached we will witness resistance. Bur this is entirely a matter of how the public and those who influence public opinion view the consequences ot judicial activism.' There are, hi other words, inherent limits on how far the Court can go in dictating to Americans what the Constitution means, bui these are a straightforward product of substantive policy preferences. What this way of thinking about the Court overlooks is that any inherent limits on judicial authority, whatever they may be, are not unconnected to or unaffected by beliefs about the formal status of the Court's rulings. Gr»mi that the Justices will, at some point, inevitably reach the end of their ability to control constitutional law The point .11 which thin happens will rteverrhn less vary depending on how much utirhiirrrv onlitmrv utr/nn and political leader lulirvr ttur ihr CoutT ought to have. The reason this is true, if not self-evident, is easily explained: win «In 1 wr actively oppose a decision or course of decisions will depend on win 11 n 1 w< think the decision or course of decisions is legitimate. But judgments about legitimacy turn not only on whether we agree or disagree with the Courts results, but also on whether we feel entitled to disagree and, more important still, to act on our disagreement. To draw an analogy to agency law, we will be quicker to second-guess and resist rhe decision of an inferior than that ot a superior—and this even if it is the same substantive decision. The Court may, eventually, do things that would arouse active opposition even from people who generally endorse a philosophy of judicial supremacy. But it will take longer and require more extreme judicial misbehavior before such people resist than would be true if the same people rejected judicial supremacy for a more decentralized theory of interpretive authority. Put another way, a Court that embraces a philosophy of judicial supremacy and claims to be the Constitution's sole authoritative expositor will reach farther and do more than a Court that does not. By the same token, a people that accedes to the Courts pretensions in this respect will permit the Justices to go tarthcr and do more than a people that does not. Bush v. Gore is a telling example. One need not take sides on the merits of the case to see that public reactions to the Court's decision cannot be explained as a matter of widespread indifference, much less political consensus.7 Nor is it anachronistic to observe that if the Supreme Court had stepped in this way when Hayes and Tilden deadlocked in 1876, the half of the country that supported the loser would not have stood passively by. They might have attempted to impeach the Justices or to impose new responsibilities designed to make their lives miserable (as Jefferson did). They might have sought to ignore or frustrate rhe Court's judgment (as Jackson ami Lincoln did). They might have moved to slash the Court's budget or strip ir of jurisdiction {as the Reconstruction Congress did), or tried to pack the Court with new members (as the Reconstruction Congress did and Roosevelt tried to do). They might have done any number of things. But they surely would have done something: something other than submissively yield while explaining that to challenge the Court would look unpatriotic. Which is why, of course, no one at the time of this earlier election—on or off the Court—ever dreamed of trying to resolve it in litigation. The reaction to Buth v. (Jftre in merely suggestive, moreover, of a larger point. Il could well he thul ,< majority oJ the country presently supports what the KrlmmuM Cmirl il ilmng, That Ktill doe* not explain why all those who di*agrcM5, nod dimuiree Mrouy.U, ucverihrlewa feel constrained THE PEOPLE T H M IS S hV E 5 POPIFI.AR L'ONSTITUTIONALISM, CIRCA JQOJ to accept the Court's rulings while waiting for Justices to die or retire in the hope they can be replaced by judges whose Views an: more sympathetic. Nor does if explain why ituneonc like Patrick Leahy thinks it his duty "as an American" to affirm that decisions of the Supreme Court are "the ultimate interpretation of our Cons mutton" no matter how wrong he thinks they ire. What presumably does explain facts like these is the broad change in public attitudes toward the Court that occurred in the latter hall'of the twentieth century. Where most people s unarticulated, intuitive sense in earlier generations presupposed the rightness and naturalness of popular constitutional-ism, today that sense has switched ro favor judicial supremacy—a turnabout in beliefs with effects across the whole political and ideological spectrum. In several recent surveys, more than 60 percent of respondents answered that the Supreme Court has the ^lasr say" on constitutional question?, with another tt percent responding that they did not know/ Equally interesting is that the surveys' authors thought it obvious that choosing the Court should be graded the "correct" answer. These sorts tyt beliefs about the locus ol constitutional authority are ami always have been less a matter of active, self-conscious commitment on the part of ordinary citizens than an implicit background assumption of popular political culture. But background assumptions like these are crucial in tram' ing how ordinary Americans understand their role as citizens and what they expect from their political leaders. And that, in turn, shapes what these leaders say and do. An products of the same political culture as their constituents, leaders like Senator Leahy and Vice President Gore may believe what rhcy say about the Court's supremacy. But even were this not so, they are also astute politicians—astute enough to sense that trying to build opposition to rhe Court by decrying judicial supremacy will not go down well with most Americans. Nor roday. at any rate. How and why this change in altitudes came about is a complicated story, though we have already alluded to some of the causes: heightened skepticism about popular democracy occasioned by twentieth-cenrurv rut.ihtarianhjm; the historical anomaly of the liberal Warren Court; two generations of neat consensus about judicial supremacy among intellectuals and opinion-m&k ers on both the left and the right {not to mention among high school civu teachers).''' i~hu whutuvcr rhe cxphuiation, there can be tittle doubt cilhti thm a change occurred or that it has affected how the Supreme Court fnd Jti decisions are received by ordinary citizens welt a* hv public olTu-iiik, .11 ul hy ■ ►pponeiits tj[ tin- Cowt ,w wl\ m by it* supporter*. furthermore, understanding this tells us something important about tin-nature of judicial supremacy itself Supremacy is an ideological tenet whose whole purpose is to persuade ordinary citizens that, whatever they may think about the Justices' constitutional rulings, it is not their place to gainsay the Court. If is a device to deflect and dampen the energy of popular constitutionalism. That energy cannot ever be wholly contained, and history ha* repeatedly demonstrated how irresistible political pressures will be brought to bear against a Supreme Court that goes "too tar," The object of judicial supremacy is to make this breaking point as distant as possible: to maximize the Court's authority by inculcating an attitude of deference and submission to its judgments. It is akin to telling jurors that they "must" follow the judges' trial instructions in order to mask and minimize the use of the jurys undoubted power of nullification.1" As with the jury, moreover, successllilly persuading people to accept judicial authority does more than raise the barriers to rebellion. It affects how the whole system works. Public acceptance of judicial supremacy pervades constitutional law and politics. It changes how the Justices conceive their role, how they decide cases and write opinions. It changes how politicians, the press, and other affected actors internalize the Courts rulings—and in this way it changes rhe effects of those rulings beyond the particular case. It changes how Supreme Court decisions are 41 inscribed within the ,.. institutional fabric of social relations* and so how citizens "reconstruct legal norms" in their own lives.11 It changes everything, in other words, and in ways that are subtle and pervasive and not seen only (or even mainly) in big, explosive confrontations about whether to obey a particular decision. ''The Surest Expositor of the Constitution1 That being so, surely we should ask whether the principle of judicial supremacy makes sense. Not because the liberal Warren Court or the centrist Burgri Court or the conservative Rehnquist Court should be judged good or had or deserve our praise or condemnation, but because much bigger issues are at sr.ike. Against the larger backdrop of American history, the acceptance oj judicial suptcmacy hi modern constitutional times is exceedingly anomalous. Il b not too much to fay lh;it it ban fundamentally altered the meaning of republican 1 itr/rnship hv, »<. . . - mm rptual matter, taking ordinary people out o! the prot'en* ol iJiapmji couvtihirional law. Except in the most abstract IttrWtj "We the l\oplif luve—apparently of our own volition— tiiuiik'd THE PEOPLE THEMSELVES rciPin.AK CONSTITUTIONALISM, CIRCA 2003 control oi our fundamental [aw over to what Martin Van Buren in an earlier era condemned as "the selfish and contracted rule of a judicial oligarchy.n|J Perhaps Van Buren wis wrongs along with Jeffcrsont Jackson, Lincoln, Roosevelt* and all oar other forebears who worked to contain judicial authority. Perhaps this really is the right thing to do. If so* however, there should be good reasons for it. Most people who support the Court's supremacy in constitutional law today piohubly Jo <;<> without thinking about it much, based either on an assumption that judicial supremacy follows naturaliy from the Constitutions status as law, or a belief that this supremacy was originally intended or established early on: both claims contradicted by the previous eight chapters. Academic defenders of the Court, however, have offered several additional reasons to justify giving it the last word on constitutional meaning, modern elaborations oi argument? first developed in the eighteenth and nineteenth centuries. One frequently heard argument is that wc need judicial supremacy to serve the so-called settlement function of law: absent firm judicial con-rro|T we are told, constitutional law would become unaceeptably chaotic, unpredictable, and nonuniform.11 The other still more common claim is that judges should have final say because the constitution entrenches particular rights and rules as precautions sensible democratic citizens take against their own future dangerousness. and courts are more trustworthy than electoralry accountable bodies when it comes to respecting such commitments. Much could undoubtedly be said both for and against these justifications Much, indeed, has already been said, for the question of judicial supremacy has been at the heart of academic constitutional debate for more than two generations.w Thankfully, we need not rehearse the by-now elaborate arguments here, ejccept to establish one crucial point—to wit, that both justifien-tions turn out, after inspection, to rest on controversial empirical assumptions, assumptions about whose truth (if we are being honest) it is difficult to have too firm a conviction because they turn on "facts" that can never be tested or proved. The claim that wc need judicial supremacy to settle matters and bring mi end to conflict is straightforwardly empirical: that this claim is anything hui obvious is cquaiJy straightforward. To begin with, there is no such thing t» perfect finality or "settlement1' in law. Uncertainty ami instability will exim even in a regime of total judicial supremacy, while we wiU find ,i considerable degree of finality and resolution Wfeti witlmul it Tin Jmmm- i:.....r Ix-rwrru ontn .nut ■ limn, or st.ibitity and 4iiari:liy. but Lmwr.-ii different type* oj iitit-bilily ,iud diUcrrnr im 1 hauitmn Ibr arhirvmp, it." Whether ihrrr in j Vnlr ment gap" between a world with judicial supremacy and a world without it, and if so, whether that gap is large or small, depends on how different institutions handle constitutional questions.-* Proponents of judicial supremacy on settlement grounds have been notoriously inattentive to what we know about the way in which political institutions actually deal with the Constitution, content to argue from stereotypes and theoretic possibilities. Yet experience suggests that if there is a settlement gap, which is by no means clear, that gap is likely to be smalL This is so for a number of reasons. Nonjudicial actors also value stability and predictability and work hard to produce it.17 The structure of American politics, in turn., reinforces these natural incentives by requiring large coalitions to bring about change.1* For this reasont constitutional understandings determined in politics over the course of American hisrory have been impressively stable, often lasting for decades and proving themselves at least as durable as judicial doctrine. For the same reasont moreover, it would never he the case that everything was up for grabs all the time. Issues might come and go; things that were once settled might again become controversial. But at any given time, the vast majority of constimtional law would be stable and settled. PlusT Supreme Court decisions could still be expected to conclude most constitutional disputes even without a formal doctrine of judicial supremacy. Courts do come last, after all, if only as a matter of political consciousness and perception. This means that their rulings are going CD be final as a practi- not a product ol intellectual limitations or unwillingness to listen to reason or ignorance or prejudice or interest or anything like- th.ir. "I'Iil-m air stmph hard questions, much too complained ever to be solved or put to 1**1 nine and tor all. This is so, moreover, even if one tutt-pp. rhe claims ol moral ten I istfl that there are objectively "right" answers to questions about jimicti and Hl'hK VVIiiiii'm't 11 oUjiviivrlv "mi ili.n:." iilti-i ill, i% .nil .1, u-i-.ilile to u» only insofar as our flawed, subjective capacities permit us to comprehend it. and on this level room for legitimate disagreement will always and necessarily remain.1* Advocates of judicial supremacy ask us nevertheless to turn our disagreements over to judges, arguing that certain characteristics of the judicial process make judges more likely to reach desirable outcomes than politicians or ordinary citizens. This assumes, of course, that while we might legitimately disagree about results and about justifications, we should nevertheless be prepared to agree that the particular characteristics attributed to courts and judges make them more likely to make decisions that are, in fact, right- Bur why should we do that? What is different about this question of process that makes anyone think we should be more prepared to agree on it than we are on results? Consider, for example, the argument that judges can reason about questions of political morality "better" because institutional independence insulates them from the sort of grubby self-interest that distorts the thinking ot ordinary citizens and politicians. Even granting the very questionable proposition that judges arc meaningfully insulated from self-interest (as opposed to experiencing it in a different form), the argument that this is a good thing runs counter to other cpistemic principles—for example, that hard choices are best made bv those who have a sufficient stake, in the matter to decide responsibly/5 And how do wc resolve that disagreement? Yet with 11 concurrence on the necessary or proper circumsrances for reaching moralh correct results, any argument that judges arc more likely to do so either lacks foundation or is question-begging*'36 It does not follow that judicial supremacy must be rejected. Uncertainty about which answers or which processes are best does not automatically point us toward any other institution to resolve disagreements cither Per haps backers of judicial supremacy should be less confident about their argument, but incertitude is not the same thing as incapacity. Wc still must decide who should decide, and one could still choose the judiciary because one believes (all things considered) that the judicial process offers the bc»t solution. Ultimately, we cannot avoid making our best guess about which <•( our institutions is likely to do the be9t job in light of what we know about their relative capacities to act responsibly when it comes to the Constitution. It however, only a guess. Mosl * .Mumrntutort Hccm in have little diflu ully gur-.iur that i political in mutton like Congrrw cannot be trotted to \aUc roristitutinnal i|iicHlionti M'tmiiLh M.ivlic ii wan ibtliMTiit in the nineteenth crutuiv, d» ) nay, think- THE PEOPLK THKMS ELVES POPULAR CONSTITUTIONALISM, CIRCA 200} ing of rhc erudite floor debates that fill the pages of the Register of Debates and Congressional Globe. But today? Except on rare occasions, congressional "debate" today consists of members making canned speeches to an empty house, hoping that what they say will be replayed for the folks at home on C-SPAN.This may have benefits politically, bur who would seriously maintain that it is remotely as good as the deliberations of the Supreme Court? Such comparisons are worth rethinking. Who said that the only or best place for serious congressional debate is on the floor in open session? This may have been how they did it in the nineteenth century, whereas tcnlav Congress limits serious floor debates to matters of great public import. Yet this is not because there is no serious discussion or deliberation. It is because, as with most public institutions, changes in the nature and amount of husi tiess to be transacted have forced Congress to bureaucratize. As a result, deliberations are now carried on mainly behind-the-scenes: in committee* or caucuses, between individuals, by e-mail, through staff, and so on. But an anyone who has worked closely on legislation can attest, the process remaini deliberative and, in factt permits many more voices to be heard and much more information to be assimilated than would be possible if congressmen were wasting hours every day discussing matters on the floor. Indeed, the amount of discussion that takes place and information that is processed dwarfs what Congress did in the nineteenth century. It also dwarfs anvthuiy, the Supreme Court can do—which is as it should be. Tins is no less true when it comes to constitutional questions than anything else, and committees and staff devote hundreds of hours to understanding, debating, and resolving constitutional issues. Obvious examples include congressional discussions of war powers, line-item vetoes, interbranch rein tions, and federalism—all of which have received and continue to receive smdious attention in Congress* Nor is the list of subjects limited to question* of constitutional structure. Keith Whittington observes: Continuing extrajudicial debates over affirmative action, euthanasia, the death penalty, pornography, school prayer, gay rights, Internet privacy, sexual harassment, and gun control reflect sustained concern with individual rights, constitutional values, and political principled. Wc may disagree with the conclusions that various extrajudicial bodies reach in these debates, as we may disagree with ihe concluoiom of rhf courts. But it is difficult to maintain that viich extrajudici.il decisions are unconsidered or neglect cottNidcrniioint of junhcc and prim iple If Congress does not do better, moreover, this may itself partly be a product of judicial supremacy—a possibility Mark Tushnet labels the "judicial over hang,"*11 M[llf Congress docs badly because the courts are on the scene," he points out, "Lwje really cannot know how Congress would perform if the courts exited."2* Standing behind the skepticism of Congress arc certain stereotypes about legislators and the legislative process generally. In both scholarship and the press, legislators arc dismissed as unthinking automatons, incapable oi deliberating seriously. They arc presented as either thoroughly unresponsive to those they represent and attentive only to private interests dangling campaign dollars before their eyes, or as thoroughly unprincipled and willing to act instantly on the most hateful urges of their constituents—who are themselves portrayed as creatures without reason, ever in thrall to irrational emotions. Obviously such accounts are exaggerated and overdrawn. Scholars who study Congress generally agree that while legislators are naturally concerned with reelection, they have other things on their minds as well—not the least of which is making a difference and building a reputation by creating good public policy*" Which is not to say that members of Congress should be recast as ideal interpreters of a Constitution. To accomplish anything, legislators must work with interest groups. This has important benefits that legal commentators tend too easily to overlook, such as providing legislators with much needed information, helping them to understand and anticipate how legislation will affect relevant groups, reducing uncertainty about how different laws might be received by voters, and helping to communicate relevant information to the public.31 But the process still inevitably requires making all sorts of compromises. Conscientious legislators must struggle against politics to find space for principled decision making, space that is rarely, if ever, unconstrained in the real world. Yet to say that legislators do not operate in some Habcrmasian ideal speech situation is not to say that the legislative process is therefore nondcHberativc or devoid ol principle. Congressional decisions still rum on whether appropriate justifications can be found for a vote: justifications that are persuasive, rhat a legislator believes he or *he can publicly offer to constituents back home, and that arc consistent with or reasonably distinguishable from other positions he 01 :ihe ban taken 1 Tlii.-, i:, particularly (rue when it comes to high-profile toustiimuinnl r.,ur, rlui i»iti,iyaU mi^hl lend one ft U-hcvc T 11 f. PKOPlE THEMSELVES POPULAR CONSTlTtTTJONALISM, CIRCA 200^ Turning to the Supreme Court, we may want to question romanticized accounts of the Justices as lawyers-cum-plnlosophcrs/potitical scientists,, studiously pondering weighty questions of principle before crafting cartS^-fut explanations that reflect deeply on the theoretical dilemmas they have faced. After all, the Court has not been immune from the same pressures to bureaueraiize that changed the rest of government, and like Congress, the Court now leaves most oi its business to staff w< irking behind closed doorh. Indeed, if comparisons are wanted with the nineteenth century, consider the Court then and now. The Justices used to do all their own work, They used to hold oral arguments that tasted for days, laboring assiduously with counsel to understand a case and develop their ideas. Ttay used to discus* each other's opinions in detail and at length. Today, most of the Justice! rely on law clerks to prepare a case for them, seldom reading more than a "bench memo" or the parties' submissions. Oral argument is limited to one hourh which the Justices use es i mlly to get clear on the facts and to signal their thinking to one another. One reason they need to signal each other this way is that they spend so little time talking. Conferences art IM short as possible, consisting mainly of terse declamations by each Jus cm: explaining his or her vote, with link- or no actual debate or discussion The detailed legal analysis is done almost exclusively by the clerks, recent law school graduates with at most a year or two of experience. Opinion* are drafted by a single chamber, with minimal input from other chamlvm (except via conversations among the clerks). The Justices almost never mcd to discuss a dratted opinion and they never work out their reasoning .n group. The veneer of careful deliberation is generated almost entirely by I ho law clerks, who draft most of the long opinions that constitute the Couri'n only public statement. I lie Justices1 role consists mainly of dictating (In outcome, instructing the clerks on how an opinion should took, and editing. This does not mean that the Justices are not in control, bur there i* 4 considerable gap between this kind of control and the stories told to ju-,rilV judicial supremacy. To say these things is not to Criticize. Supreme Court Justices wink vcty hard and do a remarkable job considering the volume and difficult!1 of the work they face. It this description sounds harsh, it is only because wc tm stubbornly held onto a myth of the Court as some sort of institution rli.it time forgot, the one public body thai souudmw manned [>> minim......him* from pressures that remolded every other public institution. Hut, of court*, the Court has not been immune, mid these pietturet have; nihvtrd it ua much u Congress One ear* admiie rhej Own ti»r hnw it handle«its respon- sibilities while still being realistic about who does what and under what circumstances. None of this argues conclusively against the doctrine of judicial supremacy. It simply calls into question some assumptions that modern commentators have come to take for granted. Yet given our actual historical experience, not to mention the experience of other democracies that have flourished without judicial review, how confident should we be that it is necessary to assign the Court this high political authority? How significant is the difference, really, between the Court and Congress: Even assuming that the Court is less affected (or, more plausibly, dilTerently affected) by short-term political pressures, what about the pressures that do distort its decision making—ideology, lack of information, ignorance of consequences, the confounding effects of law's technicality, and the like? And even if these distortions are for some reason less worrisome, how should we weigh any differences against the superior democratic pedigree attached to decisions made by other political institutions? h it significant in this respect that the Court itself is invariably as divided as rhe rest of the country on controversial questions? "A Matter of Sensibility "Once wc reach this point in the argument/* MarkTushnet observes, "it is impossible to avoid personal judgments/53 The question is, how do wc make these judgments? Or, to pose the problem from a slightly more sociological perspective, what moves people to make the judgments they make? And, still more interesting, what makes them so Certain? For while a small circle of scholars may be prepared to abandon judicial supremacy most people not only favor ceding this power to courts, hut think it obvious that our consti-nirional system would be signtricandy worse without it. Some go so far as to say, still without hesitating, that American constitutionalism might not survive if the judiciary did not have final say on constitutional questions. Given uncertainty about the empirical grounds, how do we explain such assurance? The root of the matter, *ays Richard Parker, has nothing to do with logic or evidence or history Oi law. It il '\\ matter of sensibility.P" And the domi-i mm sensibility auufiifl InwyvrK judges, ncrmlars, and even politicians, Parker maintains, i* "Antl- Pi^puJinr'*—l>y whirh he mean* of the view that "ordinary Ipulineal tnerRy .. i* problematic br.n\ iimihntn. ih.it sei il apart from, bind identity rt ml quahlimvclv inferior to. mod Vcrinrd' WUTce* of political TUK PEOPLE THEMSELVES POPULAR CONSTITUTIONALISM, CJJU'A iOO\ participation."1" All rhe anxiety about Congress is ultimately not so much about legislative institutions or legislators as it is anxiety about usH about what we will permit or encourage politically accountable actors to do. The modern Anfi-Populist sensibility presumes that ordinary people are emotional^ ignorant, fuzzy-headed, and simple-minded, in contrast to a thoughrtul, informed, and clear-headed cure. Ordinary people tend to be foolish and irresponsible when it comes to policies: sell-interested rather than public ■ spirited, arbitrary rather than principled, impulsive and dose-minded rather than deliberate or logical. Ordinary people are like children, really. And being like children, ordinary people are insecure and easily manipulated. The result is that ordinary politics, or perhaps we should say rhr politics that ordinary people make, *is not just low in quality, but dangerous as welL*1* It comes as no surprise that people who hold these sorts of beliefs about ordinary people would gravitate toward something Like judicial supremacy. Seeing democratic politics as scary and threatening, they find it obvious that someone must be found to restrain its mercurial impulses, someone leas susceptible to the demagogucry and short-sightedness that afflict common people. This is High Federalism redux. And likt: tin High Federalists of the 1790s, modem commentators have come to see the whole point of rhe Constitution in exclusively countcr-majnrirarian terms—as if this were self-evident, as if a constitution could be nothing else.37 Other commentators have similarly noted the profoundly anti-democrat ii attitudes that underlie modern support for judicial supremacy: attitudes grounded less in empirical tact or logical argument than in intuition ami supposition. Mark Tushnet points to a "deep-rooted fear of voting" among modern intellectuals and suggests they "are more enthusiastic about judicial review than recent experience justifies, because they are afraid of what the people will do."1* Jack Balkin describes a dominant "progressivist sensibiliry," constituted by 'elitism, paternalism, authoritarianism, naivete, excessive and misplaced respect for the 'best and brightest.' isolation from the concerns of ordinary people, an inflated sense of superiority over ordinary people, disdain for popular values, fear of popular rule, confusion of factual and moral expertise, and meritocratic hurbris."-" In a particularly strong indietmeru, Roberto Unger identifies "discomfort with democracy" as one of the "dirty little secrets of contemporary jurisprudencc.,,*) This discomfort shows up, h* says, in every' area of contemporary legal culture: f I |n the ceaseless identification of rcstruititic upon majority rule, rather than nl rcitrauiK upon tin: \*twvt o| dominiím minorities, an ihr over- riding responsibility ofjudges and jurists; in the consequent hypertroph) of countermajoritarian practices and arrangements; in the opposition to all institutional reforms, particularly those designed to heighten the level of popular political engagement, as threats to a regime of rights; in the equation of the rights of property with the rights of dissent; in the effort to obtain from judges, under the cover of improving interpretation, the advances popular politics tail to deliver; in the abandonment of institutional reconstruction to rare and magical moments of national refoundation; in the single-minded focus upon the higher judges and their selection as the most important part of democratic politics; in an ideal of deliberative democracy as most acceptable when closest in style to a polite conversation among gentlemen in an eighteenth-century drawing room; and, occasionally, in the explicit treatment of party government as a subsidiär)' last-ditch source of legal evolution, to be tolerated when none of the more refined modes of legal resolution applies, Fear and loathing of the people always threaten to become the ruling passions of this legal culture. Far from being confined to conservative variants of contemporary legal doctrine, these passions have left their mark upon centrist and progressive legal thought,4' Those who sec themselves as targets of such critiques may bridle at the pejorative overtones, choosing to present what they think about ordinary people and politics using kinder, gentler adjectives. But they would not deny or repudiate the underlying core: that constitutional law is motivated by a conviction that popular politics is by nature dangerous and arbitrary; that "tyranny of the majority" is a pervasive threat; that a democratic constitutional order is therefore precarious and highly vulnerable; and that substantial checks on politics are necessary Lest things tall apart. While perhaps wanting to say that Parker, Balkin, and Unger have used rhetoric to create a caricature, supporters of judicial supremacy would nevertheless insist on the fundamental correctness of the story that ordinary politics is too dangenjus to permit without some indejxmdcnt body to control its excesses and injustices. This sort of skepticism abnut people and about democracy is a pervasive km lure ot cimrcmpoKirv intelle* ui;il culture. We sec it in persistent misread-ings of the Founding that ttelectivcly focus on statements expressing fears of popular majorities, that do not rvru Nee the nunc important, more pervasive ihciric 1 '.lihi.itin'.- il.......' |mpu1.n rule. We see it, too, in the rise ot ihr " who would defend the capacity of ordinary citizens to govern responsibly, are viewed as weak or naive or just catering to others who are weak or naive. These deep-seated misgiving* about ordinary citizens explain whv mod ern intellectuals worry so about the risks associated wnh jw>pukr government nid why these risk* loom M) large in their cyct/lhur quahm tmitintrntly li\id thrin to rcwilvr di (■nri-. .iIhum the proper Nfiucfun «»1 dt'iuocnmc ninti rutions in ways that favor minimizing or complicating popular participation. This is not a formal rule, of course. It is a matter of intuitive judgment: given plausible arguments for two versions of democracy or for rwo institutional arrangements, both of which can be abstractly justified under democratic theory, the one that complicates or qualifies popular participation or thai places more or greater obstacles in its way invariably seems preferable. And it is this sensibility that explains why for so many of these scholars the question of judicial review is easy and obvious. For those with a different sensibility; the opposite conclusion seems just as easy and just as obvious. Parker, for example, finds palpable "Itjhc exaggeration on display" in conventional srorics about majoritarian politics: Surely, the exertion of political energy is not—in and ol itself—incipi-endy tyrannical. (Think of the Constitutional Convention of 1787.) Nor is the exertion of such energy by ordinary people. (Think ol the Revolution or the Abolitionists or the Civil Rights Movement.) When we make sweeping claims about tendencies of majority opinion to intolerance, we display the same kind of exaggeration. . . . Wc frequently dismiss majority opinion as founded on nothing but prejudice—when it plainly is more complicated—simply in order to emphasize our disagreement with it.*7 Balkin likewise questions whether depicting ordinary citizens as easily manipulated, unreasoning, unreasonable creatures reflects anything more than elite prejudice and distaste for popular culture. Ordinary people, he says, "are not mere passive receptors," and treating them as such is "just another way of denigrating [their] intelligence and abilities."11" One may not agree with the conclusions they reach, but as Waldron urges, disagreement about hard and important questions is the very essence of democracy. Slogans like "the tyranny of the majority" are just that: slogans. Absent some reason ro believe that other members of society are not approaching questions with the same good faith we attribute to ourselves—and the fact that they reach conclusions we disapprove is not itself such a reason—wc have no basis to presuppose that "wc" are right while "they* need discipline and controL'* Once again, t 1u.l1. t.il Mipu-m.uy are not secretly itching for monarchy, its QPpraga arc not dreaming q| IQtqe pic-in-the-sky model of Athenian direct tleinoCtBCy/rhev ru:nnl 4<< - l.fw politics down lie,, in TtlE PEOPLE THEMSELVES POPULAR CONSTITUTIONALISM. CIRl^A jo'i | separation of powers). Still, there is a qualitative difference between political restraints like bicameralism or a veto and a system of judicial supremacy. It is the difFc rcncc between checks that are directly responsive to political energy arid those chat are only indirectly responsive, between checks that explicitly operate from within ordinary politics and those that purport to operate outside and upon it. Two conclusions follow. First, the difference between friends and foes of judicial authority is ultimately a matter of degree. One might wonder whether this difference is important enough to worry about, but mosr people clearly believe that it is—clearly believe, in other words, that the decision to have or not to have judicial supremacy matters. Second, the choice one makes in this regard does not turn on evidence or logic, much as intellectuals on both sides of the question might want to believe otherwise. It ftirns, as Parker says, on differing sensibilities about popular government and the political trustworthiness of ordinary people. *A Proper Respectfor the People0 This is, wc can now sec, a very old conflict: one that started the moment Americans set their sights on creating a republic and that has scarcely ever flagged since then. In the epigraph to this book, James Madison asks uWho Arc the Best Keepers of the Peoples Liberties?" Madisons faux-debater Republican answers that "ftlhc people themselves*1 are the safest repository—to which Madison has Anti-republican reply: "The people are stupid, suspicious, licentious" and "cannot safely trust themselves." "Wonderful as it may seem," Anti-republican continues, "the more you make government independent and hostile towards the people, the better security you provide for their rights and interests." Correcting for the peculiar phraseology ol tin period and tor Madisons evident hosriliry to Anti-republican's side of the argument, is it not remarkable the extent to which this 1792 exchange pre fig -ures the debate we are still having today? Look ahead six decades, to Martin Van Burens 1857 Inquiry into thf Origins and Course of Political Parties in the United States, and one find* the same arguments being made, hollowing Madison, Van Burcti say. thai American politics have always been defined by a struggle between two great principles, which Van Buret 1 labels "democracy" .md "aristocracy" ,md which he describe*) in term* of their appeal in AOs! who have proper respect lot the people" and thewr who have h4n inexhaustible distrust . . . of the cipw 1 rics and dispositions of the great body of their fellow-citizens.'^" Van Hutri* shares Madisons hostility to the aristocratic impulse, but he is neither wronn nor off base in identifying the persistence of these two views and in emphasizing their centrality in shaping politics. Simply put, supporters of judicial supremacy are todays aristocrats. Once can say this withour being disparaging, meaning only to connect modem apologists for judicial authority with that strand in American thought that has always been concerned first and foremost with "the excess of democracy." Today's aristocrats .ire presumably no more interested in establishing a hereditary order than were Alexander Hamilton, Gouvemeur Morris, or Joseph Story. But like these intellectual forebears, they approach the problem of democratic governance from a position of deep ambivalence: committed to the idea of popular rule, yet pessimistic and fearful about what it might produce and so anxious to hedge their bets by building in extra safeguards. Todays democrats, in the meantime, are no less concerned about individual rights than were their intellectual forebears: Jefferson, Madison, and Van Buren. But like these predecessors, those with a democratic sensibility have greater faith in the capacity of their fellow citizens to govern responsibly, Thev see risks, but are not persuaded rhat the risks justify circumscribing popular control by overtly undemocratic means. In earlier periods, aristocrats and democrats found themselves on opposite sides of such issues as executive power or federalism. Today the point of conflict is judicial review, as it was for much of the twentieth century. Yet while the held of battle may have changed over time* it is still the same old war. The question Americans must ask themselves is whether they are comfortable handing their Constitution over to the forces of aristocracy: whether rbey share this lack of faith in themselves and their fellow citizens, or whether they arc prepared to assume once again the full responsibilities of self-government. And make no mistake: the choice is ours to make, necessarily and unavoidably The Constitution does not make it for us. Neither does history or tradition or law. Wc may choose as a matter of what Sanford Lcvinson has called "constitutional faith" to surrender control to the Court, to make it our piatonic guardian tor detining constitutional values.51 Or we may choose i tt ol jurisdiction ur shrink us si/e or p;nk il with new ineniU-rs ui pvv it burden some new responsibilities or revise its procedures. Trie means arc uvailuhh . and they have been uvisd to gjuat effect whtn ncccasary—used, we nbould note, iiol by diun'putable or tiiilrd leaders, but by >oi.....I the rm»M .idiunnl President* »md i ongttMC* in American hihtorv. THE PEOIM.ř; THEMSELVES Just mentioning such devices sends a chili down the spines of most lawyers and legal scholars (not to mention judges). The same anxiety that leads them to favor judicial supremacy—that panicky feeling that popular politics is a wild animal to be kept at bay—makes the possibility of frontal attacks on the Court seem positively terrifying. That would be letting the animal out of its cage; worse, it would be letting the animal tear down its cage. Immediately we begin to hear how fragile and precarious judicial authority is, as if the Court would feebly collapse were it ever challenged in more than words. How ironic if the only way we can sustain this supposedly weakest branch is by making it the strongest one' letting it order the others about with impunity while forbidding them to resist and insisting that their only recourse is to wait for the Court's members to die or tire of the job. The nations of modern Europe have found more sensible ways to handle this problem of control. Recognizing that constitutional enforcement is not and never could be like ordinary legal interpretation the postrWorld War II constitutions of Europe established special courts, not part of the ordinary legal system, whose sole function is to review constitutional questions.3 Given the high political station these courts Occupy, additional safeguards were added to ensure an appropriate level of political accountability without needlessly compromising judicial independence. Appointment to rhe bench thus typically requires a supermajority in one or both houses of the legislature, guaranteeing that constitutional courts have a mainstream ideology, while judges serve terms that are limited and staggered to ensure a regular turnover.' In addition, the constitutions themselves are more easily amendable than ours. The combined effect of these innovations is to relieve the pressure a doctrine of supremacy creates by reducing the likelihood of serious breaches between the constitutional court and the other branches of government, and by making political correctives easier to implement when breaches occur. Partly as a result, constitutional courts in Europe have managed success tu J ly to in unit American .nhvi^m without rhe same controversy, though recent developments suggest that European judges, too, may be approaching the limits of their authority/ No similar devices are found in the U.S. Coostirution because when our Founding Fathers wrote no one had yet imagined anything even remotely like modern judicial supremacy. Judicial independence was rhoughr of primarily in connection with the courts' ordinary law Functions, and life tenure and salary protection were valued chiefly a\ devices to eliminate executive rind legislative influent e over ordinary liriguTiou/ It was only n* the judicial power expanded iunl ik pun-iund nod politici] importance became cleur that epi we discovered a need to compensate for this gap in our Constitution, so we scrambled to create a degree of control and accountability by turning to blunter political tools like those mentioned above and described in earlier chapters* The resulting system has worked tolerably well over the course of American history though its operations are hardly smooth and its costs can be high.* Given this experience, one might think it makes sense to amend the U.S. Constitution to incorporate some of these European improvements. The availability of a filibuster in the Senate already functions as a kind of supermajority requirement—though lack of constitutional formality combined with lingering doubts about the filibuster's legitimacy, have hindered its use in the context of judicial appointments. But limited and staggered terms eeem like obviously sensible reforms, and a strong case can be made for easing the difficulty of amendment as well-7 Certainly any sensible constitution-maker today, if starting from scratch, would think seriously about incorporating such devices. Unfortunately, we are not starting from scratch. Realistically speaking, there is very little chance of revising the U.S. Constitution to incorporate European ideas given the cumber some ness of our existing amendment process. We simply have to live with the jerry-built system of accountability that evolved for us in practice. That system may be ill-defined and uncertain. It may be costly and clumsy. It is, however, all that we have. And one thing wc can say about it with a fair degree of confidence is that there is little reason to fear that using it will destroy the Supreme Court's effectiveness. For experience shows rhe Court to he anything but fragile. As a historical mattcrt the Court has been able to get away with a great deal before being seriously attacked; it has also been capable of withstanding eiwrjftflfds pressure once its actions [inally provokfld an outcry. Except after Ored Scott, moreover, the Court recovered quickly from the few instances in which political weapons were finally broughl to bear against it effectively. Not that one cannot imagine a scenario in which the political branches inflicted serious damage on the judiciary. But if history is any guide, this risk of wounding the Court is far smaller than the alternative danger—which is that we list excessive concern for injuring our supposedly fragile Court become an excuse for giving rhe Justices license to roam in deciding matters that could and should be left to constitutional politics. Still, how do we r\11l.iin itie Courts apparent strength and durability? Certainly it cannot be Attributed to judicial flupremucy, which as we have Keen VfNtOOl the rule lor mmi of Ann i u ;m Li.....ry, Rather, a» social iiticntitfi* haw lohfl uiutarttooil. ,■ rrjtonahlv prudent Court can cNrabliah and vuiiain THE PEOPLE TH KM S FIVES EP1 LOG U F a high degree of authority even without forma] support from a doctrine of supremacy." The reasons are mainly those identified by Madison back in 1834, which arc worth quoting a second rime. Even within a departmental framework, Madison speculated: [T]he Judicial department most famuiarizes itself to the public attention as the expositor, by the order oi its functions in relation to the other departments; and attracts most of the public confidence by the com-position of the tribunal.. .. [Tlhe public deference to and confidence in die judgment of the body are peculiarly inspired by the qualities implied in its members; by the gravity and deliberation of their proceedings; and by the advantage their pluraliry gives them over the unity of the Executive department, and their fewness over the multitudinous composition of the Legislative department.u What Madison does not sayT but what is implicit in his argument, is that these sorts of factors carry weight because of certain expectations the public holds in respect to the Court and its role. The potential usefulness of the judiciary in a separation-of-powers scheme is nor difficult to comprehend, and politicians and ordinary citizens alike can and do appreciate that there are advantages in giving the Court some leeway to act as a check on politics 1,1 This includes understanding chat many benefits of judicial involvement are long term and systemic and so may require accepting individual decision* with which one disagrees. It takes a lot to persuade a majority in this country that particular rulings are wrong enough to overcome this presumption " To this, moreover, we must add the assorted obstacles our political system puts tn the way of anyone seeking to change Jaw (through bicameralism, the congressional committee system, filibusters, presidential vetoes, and the like), and the disproportionate power these obstacles give political minorities in blocking new measures. The upshot is that the Court's conduct must be quite provocative and very unpopular, usually over a sustained period, before it will produce actual legislative or executive countermeasures.11 It does not follow that nothing is at stake in the choice between a system of judicial supremacy and one based on departmental or coordinate construction. In the Jatrer system, the authority of judicial decisions, formally .nn.l explicitly depends on reactions from the 01 her branches ami, through rhriu. from the public. This, in turn, can make an enormnuh difference in how tin Justices behave,There may be political obstacles to pu mulling the Com 1 that make it possible even without judicial supremacy fiir rhrt Jwitieen m haw their way most of the time. But the obstacles are smaller: smaller by pre.. . 1, the weight conferred on Supreme Court decisions by the doctrine of judical supremacy, which, if that doctrine is widely accepted, can be considerable, The result of removing this weight is not more conflict. Indeed, a great irony of making clear that wc can and should punish an overreaching Court is that it will then almost never be necessary to do so. Rather than more or constant conflict, we will instead see a different equilibrium emerge, as a risk-averse and potentially vulnerable Court adjusts its behavior to greater sensitivity on the part of political leadership in the other branches. Making this shift should not entail major changes in the day-to-day business of deciding cases. There would still be briefs and oral argument and precedents and opinions, and the job of being a Supreme Court Justice would look pretty much the same as before. What presumably would change is the Justices' attitudes and self-conception as they went about their routine. In effect—though the analogy is more suggestive than literal—Supreme Court Justices would come to sec themselves in relation to the public somewhat as lower court judges now see themselves in relation to the Court: responsible for interpreting the Constitution according to their best judgment, but with an awareness that there is a higher authority out there with power to overturn their decisions—an actual authority, too, not some abstract "people" who spoke once, two hundred years ago, and then disappeared. The practical likelihood of being overturned by this authority may be small, but the sense of responsibility thus engendered, together with a natural desire to avoid controversy and protect the institution of the Court, would inevitably change the dynamics of decision making- It is this, in feet, that explains how the Supreme Court has historically husbanded its authority even without judicial supremacy, as well as why crises occurred only when an overconfident Court claiming to be supreme paid too little mind to the public % view of things.