Political Foundations of Judicial Supremacy.

• Author: Greene, Jamal
• Position: Book review

Political Foundations of Judicial Supremacy BY KEITH WHITTINGTON NEW JERSEY: PRINCETON UNIVERSITY PRESS, 2007. pp. 296. $49.00

INTRODUCTION I. THE POLITICAL UTILITY OF COURTS II. THE GROWTH OF JUDICIAL SUPREMACY III. THE PEOPLE'S COURT? CONCLUSION INTRODUCTION

Judicial supremacy is the new judicial review. From the time Alexander Bickel introduced the term "countermajoritarian difficulty" in 1962 (1) until very recently, justifying judicial authority to strike down legislation in a nation committed to democratic self-government was the central problem of constitutional theory. But many who had satisfied themselves as to the legitimacy of judicial review have since taken up the related but distinct question of whether, though legitimate, constitutional interpretation should be the exclusive province of the judiciary. That is, is it ever appropriate to locate constitutional interpretive authority outside of constitutional courts, whether within the coordinate branches of government or the citizenry more generally?

Recent attacks on judicial supremacy, mostly from the academic left, have sought to debunk the strongest form of the proposition that the Constitution means whatever the Supreme Court says it means. Thus, Larry Kramer traces the history of popular constitutionalism as a bulwark against the robust vision of judicial supremacy advanced by the Warren Court in cases like Cooper v. Aaron. (2) Reva Siegel and Robert Post denounce the "juricentricity" of the Rehnquist Court, which they say should have been more attentive to the contributions of political culture to constitutional meaning. (3) Mark Tushnet argues provocatively that citizens and public officials should disregard Supreme Court constitutional pronouncements that conflict with their reasonable conceptions of what he calls the "thin" Constitution. (4) And Jeremy Waldron suggests that in modern liberal democracies, judicial review is vastly inferior to the legislative process at settling questions of rights. (5)

There is an irony in all this rending of tunics over judicial power. Popular constitutionalists believe that the people themselves should play an active role in constitutional elaboration. But the place of federal judges within our system is itself of constitutional dimension. Our federal judges are creatures of the Constitution, their duties mandated in the rather bare terms of Article III and the scope of their power answerable to the people in their exercise of higher lawmaking. Settling the role of the federal judiciary vis-a-vis other political institutions is a matter of what Keith Whittington has called "constitutional construction," the ongoing creation of the Constitution's meaning through "the political melding of the document with external interests and principles." (6) Constitutional construction is sympathetic with the popular turn in constitutional theory, describing as it does the process by which constitutional ambiguity is resolved outside the courts by nonjudicial actors.

On the very terms of the debate to which popular constitutionalists have rightly steered scholarly attention, the fact that judicial supremacy was frowned upon in ages past should not, then, be sufficient reason to displace it today. Rather, we must evaluate the institution of judicial supremacy as a product of constitutional construction and according to the criteria that a privileging of dynamic and popular construction demands. Judges are not supreme just because they say so, but neither are they subordinate just because legal academics say they should be. An attack on judicial supremacy is an act of political advocacy, not a declaration of truth; assessing the normative argument requires us to ask why others appear to accept the institution, whether that acceptance is adequately informed, and whether it is premised on an attractive conception of state power. Only after understanding the underexplained appeal of judicial supremacy to those outside the judiciary may we assess its theoretical bona tides and, as appropriate, either mourn or celebrate its ascension.

Digging to the roots of that appeal is yeoman's work, though, and Whittington tries his hand in a careful new book, Political Foundations of Judicial Supremacy. (7) Whittington recognizes the need for an account of the conventionality of judicial supremacy that incorporates the motives of other political players. "[T]he Court's judgments will have no force unless other powerful political actors accept the importance of the interpretive task and the priority of the judicial voice," he says. (8) "For the Court to compete successfully, other political actors must have reasons for allowing the Court to 'win.'" (9) Whittington argues that members of the elected branches, and presidents in particular, historically have bolstered and sustained judicial supremacy in order to conserve their own political resources. As Part I explains, Whittington excels at what I call the microtheory part of his project: his description of elected officials' incentives to prop up the judiciary--whether as a means of enforcing political commitments against opposition forces, circumventing veto gates, or delegating decision-making authority on issues of low political return.

Whittington's book is structured, however, around a macrotheory that proves far less persuasive. Whittington relies on a taxonomy of presidential types that situates administrations along a spectrum from the "reconstructive" presidencies of men such as Thomas Jefferson and Franklin Delano Roosevelt; to presidents who are "affiliated" with an orthodox political regime, such as William Howard Taft and Lyndon Johnson; to "oppositional" presidents like Grover Cleveland and Bill Clinton who, through coalition-building, come to power despite being out of step with the ideological commitments of the dominant regime. Differently situated presidents face different sets of political incentives, which influence their relative support for judicial supremacy. Only in reconstructive presidencies, which are rare, can we expect to see a full-throated attack on the Court's ultimate interpretive authority. (10)

It would be too strong to say that I reject this model. It may well be that, at least in retrospect, one can array presidents along something like Whittington's spectrum, and in order to understand fully the reality of nested opposition between the judiciary and elected officials, one certainly needs to tell a story about relative levels of political capital. But as Part II discusses, Whittington fails to demonstrate that his taxonomy bears any necessary relation to the growth or survival of judicial supremacy, a subject central to his project but which he too often elides with judicial affection. Ours is a constitutional history rife with interbranch conflict, no less so in recent years than early on, and yet the strong secular trend since at least the end of the Civil War is growing support for judicial supremacy among elected officials, judges themselves, and large numbers of citizens more generally. Showing any one of these buttresses to be "foundational" is an ambitious undertaking that Whittington fails to pull off.

In truth, Whittington devotes little space to defending the view that institutional political support is uniquely necessary to judicial supremacy. His writing is tactical, his composition admirably precise. Pigeonholing broad swaths of history into narrow and contestable conclusions does not seem to suit Whittington's intellectual temperament. But the cost Of responsible inquiry is relevance, and I wonder how far Whittington has advanced the ball toward understanding the origins of judicial supremacy. As Part III discusses, the thickness of our reliance on judicial supremacy suggests roots both deeper and more diffuse than systematic political expediency can supply. Courts are part of a collective self-conception that includes an institutional commitment to justice and individual rights; they serve as a form of political insurance for both systematic and occasional political losers; they provide a measure of predictability that assists us in ordering our personal and professional affairs; and they figure in the expedient resolution of values debates that cannot be sorted out through the retail political process. The relative stability of our particular form of constitutional politics should motivate us to ask not whether judicial supremacy is a correct understanding of the role judges should play in our system, but instead, whether it is a valuable one. To answer that question, the political foundations of judicial supremacy to which we must attend are not our presidents' motives but our own.

1. THE POLITICAL UTILITY OF COURTS

   It is dangerous, not just to us but to them as well, for politicians to have too much power. With authority, alas, comes discretion, which is not always helpful in trying to run a government. Consider the following. On August 17, 1961, defectors diverted a Russian-bound Cuban merchant boat, the Bahia de Nipe, and received permission to dock in Lynnhaven, Virginia. (11) The next day, libels were filed against the vessel by various individuals and businesses that had unsatisfied claims against the Cuban government, which owned the boat. In response, Cuba requested, via a communique to the State Department, that the United States recognize its right to sovereign immunity and return the vessel to Cuba. (12) The Bahia de Nipe arrived in U.S. territory barely a year after the Bay of Pigs invasion and at the end of two weeks of diplomatic negotiations for the return of a hijacked U.S. airplane that had been diverted to Havana. The plane had been secured in exchange for the release of a Cuban patrol boat that was being held in Key West. (13) As Secretary of State Dean Rusk wrote understatedly in an August 19, 1961, letter to Attorney General Robert Kennedy, "the release of [the Bahia de Nipe] would avoid further...