Judicial Role

• Author: David P. Bryden
• Pages: 1482-1485

Page 1482

Theories about the proper role of the Supreme Court have proliferated in recent decades. These theories have been too political in one sense and not political enough in another. They are too political in that they tend to be thinly veiled rationalizations of political preferences, valued less for their own sakes than for the results they entail in specific controversies. Today, knowing someone's attitude about the role of the Court, one can usually deduce his or her political positions, not so much on ECONOMIC REGULATION as on some divisive social questions.

To arrive at a consensus about JUDICIAL ACTIVISM, we need a political situation in which most groups feel that they have at least as much to gain as to lose by subscribing to an agreed conception of the Court's role. No such consensus exists. Today the country is divided over several

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major social issues: crime, PORNOGRAPHY, race, women's roles, homosexuality, and religion. Ever since the 1950s, social liberals have believed that on most of those issues they have everything to gain and little to lose by judicial intervention; conversely, social conservatives have usually had a stake in confining the Court's role. Each camp has fashioned jurisprudential theories that reflect its perceived stake in judicial activism or restraint. In this sense, the debate about the Court's role is basically political.

Yet the debate is usually couched in legal terms, and in this sense, it is excessively legalistic. Commentators usually do not directly discuss the appropriate role of the Court; instead, they argue about how to interpret the Constitution. Thus, proponents of judicial activism espouse loose-constructionist theories of interpretation, and advocates of judicial restraint usually defend a more literal adherence to the text and its original meaning.

This familiar argument has long since become repetitive and unenlightening. Worse still, it treats fundamental political questions as if they were analogous to disputes over the meanings of contracts. To analyze judicial governance solely in legal terms implies that objections to a broad judicial role can be fully met by a cogent legal response, such as an interpretation of a PRECEDENT, the NINTH AMENDMENT, or the EQUAL PROTECTION clause. Admittedly, such analyses are essential, and they may indeed solve the purely legal aspect of a constitutional problem. But fidelity to law is not the only constitutional virtue, for the Constitution is a political charter as well as a legal text. If judicial lawlessness were the sole issue, we could solve every problem with a constitutional amendment saying, "It shall be unconstitutional to treat any social problem unwisely; the Supreme Court may enforce this provision on its own motion." That would eliminate every legal ground for objecting to a large judicial role, and yet the political objections obviously would remain.

Legalism is popularly identified with a restrictive view of the Court's role, but as this hypothetical amendment illustrates, that...