Taking its toll: partisan judging and judicial review.

• Author: Broadwater, Jeff

1. INTRODUCTION

   Most Americans would surely like to believe that the text of the Constitution, the intent of the Founders, the decisions of Marshall and Story, and of Holmes and Cardozo would substantially constrain the discretion of the modern Supreme Court. Presumably, the Court's very legitimacy rests largely on the belief that the Court operates within such constraints. Yet many serious students of the Court would challenge those assumptions as embarrassingly out-dated. As early as the 1920s, Legal Realists argued that judges did not discover objective legal truths when they decided cases; their decisions reflected a myriad of economic and social forces, including the prejudices of their time and class. In the field of constitutional law, history, text, and precedent are so malleable, some would argue, as to impose no meaningful limits, or at least no limits the strong-willed justice is bound to respect. Many share the view of Sanford Levinson of the University of Texas School of Law: "... [t]here are as many plausible readings of the United States Constitution as there are versions of Hamlet." (1)

   This article attempts to provide a representative overview of recent scholarship on the modern Supreme Court, an institution which, for our purposes, dates from the appointment of California Governor Earl Warren as Chief Justice in 1954. (2) The focus is on a few simple questions: How does the Court decide cases, what should its role be in a democratic system, and what impact do its decisions have, either in promoting social change or maintaining the Court's influence and prestige? More precisely, Section II surveys the debate over how the Court should exercise its power of judicial review. Section III reviews critiques, from left and right, of the Court under Warren and under his successor, Warren Burger. Section IV examines some ominous trends on the Court that have accelerated since the ascension of William Rehnquist to the Chief Justiceship. Section V considers both the nature of the Court's public support and its status among the scholars and intellectuals who watch it most closely.

   The literature hardly supports the popular view of a powerful and majestic tribunal impartially dispensing equal justice under law. In this cynical age, that is not news. But the contemporary scholarship does not depict a merely fallible Court occasionally reaching a disagreeable result; it questions the Court's competence, its effectiveness in achieving its own objectives, and its view of its role in the American political system. Most striking is the corrosive effect of the decline of the concept of the Court as a judicial institution administering some identifiable body of constitutional law. The liberal activism of the Warren Court still has its defenders, but support for the modern Court is otherwise surprisingly thin, thin enough to raise questions about the Court's ability to play as dramatic a role in the history of the next half century as it seems to have played in the last. This more modest view of the Court highlights, as we shall see, the value of the traditional ideals of the judicial craft: impartiality, scholarship, and moderation.

   One caveat is in order. If modern scholarship is not particularly friendly to the Court, one wonders how much help the scholars have been to the justices. Besides being increasingly arcane and inaccessible to anyone but the specialist, the literature offers nothing approaching a consensus on what the Court ought to do, or even how the Court ought to go about doing it. The most active field of constitutional inquiry in the era of the modern Court has been a debate not over the merits of what the Court has done in particular cases, but over how the Court should approach the question of judicial review. If then for no other reason than the topic looms so large in the literature, we must begin with a review of the debate over an appropriate theory of constitutional decision-making.

2. BROWN, ROE, AND JUDICIAL REVIEW

   The Warren Court's decision in Brown v. Board of Education, (3) declaring public school segregation to be a violation of the equal protection clause of the Fourteenth Amendment, created a dilemma for legal scholars. As an exercise in legal draftsmanship, Warren's opinion for the Court did not win high marks. Warren could find no support for his opinion in the origins of the amendment, and accordingly, in the words of the historian Alfred Kelly, the new chief justice "rejected history in favor of sociology." (4) Warren's sociology consisted of a few, primitive studies that suggested the self-esteem of black children could be harmed by segregation. It seemed a flimsy ground on which to reverse the precedent, Plessey v. Ferguson, (5) establishing the "separate but equal" doctrine, especially in the face of overwhelming white opposition from the area most directly affected by the decision, the American South.

   Yet any other result was inconceivable. Less than a decade earlier, the Third Reich had demonstrated where unchecked prejudice could lead. Since the end of World War II, President Harry Truman had ordered the desegregation of the armed services. Jackie Robinson had integrated major league baseball. Brown was decided at the height of the Cold War, when the United States was competing with the Soviet Union for the hearts and minds of non-white populations around the world. The Supreme Court itself had already begun to attack Jim Crow in graduate and professional education, (6) in housing, (7) and in interstate transportation. (8) The Court could not, in 1954, have given its sanction to apartheid in the public schools. (9) But whatever the moral imperative behind Brown, how could the Court, as a judicial institution, justify overturning the considered opinions of popularly elected Southern legislatures and school boards in the face of its own precedent and with scant support in the historical record? Liberals, then and since, saw both a messy intellectual problem and an admirable example of the law's ability to promote social justice. (10) For conservatives, the result was a disaster, especially because the result in Brown was so generally seen as morally correct. In his widely read book The Tempting of America, Robert Bork decried Brown's "calamitous effect upon the law." (11) Bork did not challenge the result in Brown, but he lamented the lesson it taught: the justices could ignore the original intent behind a constitutional provision, issue a badly reasoned opinion, override massive local resistance to their decision, and still emerge from the fray as moral heroes. To Bork, Brown sounded the death knell for judicial restraint. (12)

   Brown might have been read to teach that the Court could act boldly, and with little regard for traditional notions of legal craftsmanship, when its decisions reflected a consensus of national, if not local, opinion. Then came Roe v. Wade, (13) striking down anti-abortion statutes in most of the states. Upholding a right not readily inferable from the Constitution and protecting it with a regulatory scheme of the kind usually devised by legislators, Harry Blackman's opinion for the Roe majority suffered from Brown-like technical deficiencies. Even prominent liberal scholars seemed bewildered. Stanford's John Hart Ely said Roe was not "bad constitutional law" only because it was "not constitutional law and gives almost no sense of an obligation to try to be." (14) In the five years after Roe, Harvard's Lawrence Tribe, the dean of mainstream constitutional liberals, felt compelled to offer three different rationales to support the result reached by the majority, none of which were based on the majority's reasoning. (15)

   Roe was seen, in a sense, as Brown without the clear moral underpinnings. Although most legal intellectuals were pro-choice, the pro-life forces could hardly be stigmatized as the moral outcasts the Southern segregationists had become. Law professor and historian Laura Kalman, in The Strange Career of Legal Liberalism, an important study of modern trends in legal thought, describes Roe v. Wade as the defining event of the post-Brown generation. "Roe," she writes "plunged constitutional theory into `epistemological crisis', rekindling interest in judicial review and in the alleged conflict between judicial review and democracy." (16)

   That conflict would be debated on the new, unfamiliar terrain of post-modernism, a vague phrase that was difficult to avoid and impossible to define. Kalman concluded that "the very effort to say what post-modernism was indicated one did not understand it." (17) Whatever it was, post-modernist jargon came to permeate serious legal scholarship, and despite Kalman's warning, some writers have offered definitions. Robert Justin Lipkin's is as good as any:

   Postmodernism typically rejects totalizing grand schemes of discourse. It challenges any intellectual or practical domain to reconstruct itself without the assistance of formalistic or rationalistic metaphysics and epistemology. Constitutional theory, traditionally understood as championing reason, objectivity, legitimacy, and truth, is now confronted with the possibility that such notions are illusory. (18) Kalman herself may have captured the essence of the movement, but how could anyone know for sure? "In the deconstructionist moment of poststructuralist thought, the opposition of subjectivity and objectivity ... stood exposed as artificial constructs that proved more deceptive than revealing." (19)

   It is difficult to explain post-modernism, post-structionalism, and deconstructionism without lapsing into caricature, but theorists like Michel Foucault cast as long a shadow over contemporary constitutional scholarship as do Oliver Wendell Holmes and Learned Hand. At a minimum, post-modernism rejects the notion that common sense and empirical research are likely to identify anything we can all accept as objective reality. The best we can do...