Law and Judicial Duty.

• Author: Lund, Nelson
• Position: Book review

LAW AND JUDICIAL DUTY. By Philip Hamburger. (1) Harvard University Press, 2008. Pp. xviii + 658. $49.95.

What we call "judicial review" was not established in Marbury v. Madison, or by American courts. It had existed in English and then American law for centuries, not as some kind of peculiar power but rather as a corollary of the judicial duty to decide cases according to the law of the land. While that duty sometimes required judicial courage in the face of political threats, this was not its most difficult or pervasive demand. The real challenge was the requirement that judges purge their decision-making of the influence of their own wills, which required them to set aside their own views about natural law, God's will, sound policy, and even justice itself.

Phillip Hamburger's Law and Judicial Duty advances and defends these claims with subtlety and detailed evidence. He carries his historical study up through the end of the eighteenth century, and thus has little to say about subsequent changes in the understanding of judicial review and judicial duty. But there are obvious implications for our contemporary debates about the proper role of judges and about the distinction between law and politics. This review touches on those debates, and suggests that a broadened political role for the federal judiciary may have been more clearly foreseeable than the leading proponents of our Constitution thought it wise to acknowledge during the ratification debates.

1. INTRODUCTION

   In what has become a familiar ritual, Sonia Sotomayor presented herself for Senate confirmation as a judge who has never done anything except apply the law to the facts, and never will do anything else. Notwithstanding many speeches and law review articles in which she had articulated a rather different account of what judges do, (3) she resolutely maintained this position throughout her confirmation hearings.

   Sotomayor's hearings, however, were not quite a repeat of the usual kabuki. For one thing, she had been nominated by a former law professor, who had said that he was not looking for judges who fit Sotomayor's description of herself because such judges cannot exist. In explaining his vote against confirming John Roberts as Chief Justice, then-Senator Obama said:

   [W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases--what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.... [I]n those difficult cases, the critical ingredient is supplied by what is in the judge's heart. (4) When asked about Obama's statement at her confirmation hearings, nominee Sotomayor promptly and unequivocally repudiated the views of the President by whom she had been nominated. (5)

   Sotomayor's repeated, emphatic, and uncompromising insistence that the law alone always dictates her judicial decisions provoked Georgetown law professor Louis Michael Seidman to say what many other sophisticated legal observers must have been thinking:

   I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified.... First year law students understand within a month that many areas of the law are open textured and indeterminate--that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments.... Perhaps Justice [sic] Sotomayor should be excused because our official ideology about judging is so degraded that she would sacrifice a position on the Supreme Court if she told the truth. Legal academics who defend what she did today have no such excuse. They should be ashamed of themselves. (6) Observers even more sophisticated than Professor Seidman may have agreed that Sotomayor was lying, without sharing his outrage. After all, don't all the Justices, to one degree or another, tell the same sort of lies in their judicial opinions? If law is just politics by another means, the only lies worth condemning are those told by your political opponents. Why should anyone be ashamed of this, whether they are judges, nominees, or legal academics? Leaving aside Professor Seidman's indignation, obviously genuine and in that respect perhaps a bit unusual, (7) it would probably be hard to find a knowledgeable observer today who does not at least privately believe that all of our Supreme Court Justices frequently and inevitably make decisions based largely on their personal political and moral beliefs, whatever they may say about The Rule of Law.

   To the legal sophisticates who believe that ex-professor Obama was only stating what has obviously always been true, Philip Hamburger offers a fundamental challenge.

2. THE CONVENTIONAL WISDOM

   A fairly standard story about American judicial power goes something like this. The Constitution is silent about the authority of the Supreme Court to declare Acts of Congress unconstitutional. That power was seized by the Court in Marbury v. Madison, a seizure made especially impressive by Chief Justice Marshall's politically shrewd opinion. (8) He confounded President Jefferson by ruling in favor of his administration, even while also declaring that the administration had behaved illegally. Even better, by holding that Congress had unconstitutionally enacted a trivial expansion of the Court's power, Marshall achieved a radical assertion of the Court's enduring power over Congress. (9) With these savvy maneuvers, Marbury laid the foundation for an independent and powerful judiciary, which has now become the undisputed final legal authority on the meaning of the Constitution. Our judges now perform the vital political function of shaping and reshaping constitutional law, sometimes to accord with the evolving needs and emerging moral vision of a diverse and dynamic nation, sometimes to resist spasms of undesirable innovation or backsliding produced by factional politics or democratic hysteria.

   Consistently with this story, generations of American law students have begun their study of constitutional law with Marbury. And much of what they read in the rest of the introductory course tends to confirm the stirring saga that begins with this putatively seminal case. And no wonder--most of what they read has been written by John Marshall's heirs.

   This story should never have made much sense to anyone familiar with the history of the American founding. The argument for judicial review in Marbury substantially tracks the argument in Federalist No. 78, which suggests that the conclusion had already been widely accepted among those who ratified the Constitution. More generally, the...