The Constitution in Conflict.

• Author: Sullivan, Kathleen M.

I

The conventional wisdom on what liberals think about the Warren Court goes something like this: In the beginning there was the Warren Court and it was good. It desegregated the schools, reapportioned the legislatures, civilized the station house, unshackled the speech of dissidents, and stayed the hand of government in matters of reproductive choice. It called this constitutional interpretation. Then came the critics who called it legislation from the bench. The critics won the elections. They made all the appointments to the Court for a quarter of a century. The Warren Court was no more. And liberals retreated to the wilderness, celebrating the fading memory of the Warren Court and waiting for its time to come again.

Like any conventional wisdom, this one has partial truth. But it also overlooks entirely one of the most striking recent trends in constitutional scholarship. As conservatives attacked from without the notion of judicial supremacy in constitutional interpretation that is traditionally associated with the Warren Court, an array of liberal and progressive constitutional scholars lobbed their own critiques of this notion from within. Robert Burt's The Constitution in Conflict is the latest entry in this literature of progressive self-criticism.(1) Burt's central thesis is that judicial supremacy in constitutional interpretation violates a fundamental norm of equality that should govern social and political relations. In his view, the Court heeds this norm when it serves as a participant in constitutional dialogue rather than an oracle of constitutional truth. In short, conventional liberal worship of the Warren Court gets it wrong.

This thesis situates Burt squarely in what might be called the Protestant rather than the Catholic wing of liberal thought on how constitutional interpretation ought to be structured. I borrow this analogy, of course, from the evocative work of Sanford Levinson(2) and Thomas Grey.(3) For present purposes, the key aspect of this analogy is not the difference in approaches to text - Protestants look to text alone while Catholics look to both text and unwritten tradition(4) - but the difference in approaches to institutional interpretive authority - Catholics centralize interpretive authority in the Pope (Supreme Court) while Protestants decentralize or deinstitutionalize that authority.(5) Justice Jackson once said, in a kind of constitutional Catholic in-joke, that the Court is not final because infallible, but infallible because final.(6) Constitutional Protestants see the Court as neither infallible, final, or a Pope. As the Protestant-leaning Levinson recently put it, those who would bring about a constitutional Reformation must start with the "|defetishization'" of the Court.(7)

How might one go about defetishizing the Court? First, one might devolve greater authority to interpret the Constitution upon the nonjudicial branches of government. On this view, the Court's interpretation is not hierarchically superior but competes on an equal footing with that of other branches. Supreme Court rulings bind the parties in a particular case, but they need not command executive or legislative acquiescence in the next one. President Reagan's Attorney General Edwin Meese took a lot of heat for asserting this view in a notorious 1986 speech.(8) But constitutional Protestants thought he had a point.(9) Jefferson, Jackson, Lincoln, and Roosevelt, after all, had each approved defiance of Supreme Court decisions they deemed profoundly wrong.(10) Of course, people disagree about when such defiance is appropriate and, if so, what form it should take.(11) But constitutional Protestants do not presume interbranch interpretive controversy to be unhealthy.

Second, and more radically, one might devolve greater authority to interpret the Constitution upon the citizenry at large. This approach reduces the importance of all institutional intermediaries in favor of popular mobilization and engagement. Individual citizens may confront the Constitution directly, like individual sinners contemplating their God without priests. For example, Robin West has argued that constitutional adjudication is inherently "authoritarian," conservative," "hierarchic," "elitist" and "nonparticipatory"(12) - and therefore that constitutional discourse ought to be reclaimed by the citizenry acting in more participatory modes.

Those who sound such themes do not always agree on the citizenry's capacity for sustained constitutional engagement. Civic republican revivalists such as Cass Sunstein and Frank Michelman have sometimes seemed to assume that deliberative engagement by the citizenry can be more or less continuous.(13) Bruce Ackerman, in contrast, has suggested that citizens' energy for heightened deliberation on matters of constitutional import is limited, and he has therefore offered a "dualist" account in which "constitutional moments" of "higher law-making" alternate with the default program of "normal politics.(14) Despite these differences in detail, these scholars in common seek to relativize the conventional liberal distinction between politics and constitutional lawmaking. For them, rights are not trumps but just cards in the deck. In the words of Ronald Collins and David Skover, such approaches tend "to reunite constitutionalism with democracy."(15) Or, in Robin West's words, they seek to repose constitutional authority in "|We the People' rather than |They the Court.(16)

These techniques for unseating the Court from its papal throne in constitutional interpretation leave open the question of what, exactly, a nonsupreme Supreme Court is supposed to do. Robert Burt's Constitution in Conflict is an extended meditation on this question. Burt elaborates the institutional psychodynamic of Protestant constitutionalism: how the Court might internalize a communal rather than a hierarchical role.

II

Burt himself does not use the terms Catholic and Protestant to distinguish the ideal of judicial supremacy from the...