In the late 1950s and early 1960s, it was fashionable to talk about a "deadlock of democracy." There was a need, it was said, for a strong President to cut through the political stalemate and initiate policies responsive to the wishes of the people. Decisive action by the President would transcend the limitations of faction in the principal democratic institution and achieve a democratic end, albeit not strictly through democratic means. Proponents of a strong Presidency have been somewhat muted by the performance of recent administrations. And disillusionment with the Presidency has been accompanied by disillusionment with the political process generally.
One response has been to seek an increased role for the judiciary in the governance of American society. For the most part, the courts, both state and federal, have responded enthusiastically. Thus, we have witnessed courts taking administrative control of school districts, of prison systems and mental health institutions, courts directing legislatures to redraft political boundaries for voting rights purposes and to reform the financing of public education, courts enjoining public projects in response to environmental concerns, courts ordering the hiring and firing of public employees in order to meet affirmative action goals and, in a recent instance, a court ordering the payment of state funds when the governor and legislature became locked in a political standoff. In the protection of individual rights against governmental infringement, the courts have recognized the woman's right to obtain an abortion, have reinstated public and private employees who claimed due process violations or employment discrimination, and have struck down restrictions on free speech, including pornography, except when the restriction involved what is termed "commercial speech."
The scholarly defense of this judicial activism has been slower in developing than the activism itself. This is due, in part, to the "crisis" in the late 1960s with the election of Richard Nixon and the retirement of Earl Warren. There were fears that the judiciary would become activist in the pursuit of conservative causes. Nixon's early appointments did nothing to dispel this fear. However, as it became apparent that the Burger Court was not going to engage in a wholesale repudiation of the Warren Court decisions, a principled defense of judicial activism began to emerge. With Laurence Tribe's American Constitutional Law (1978), Jesse Choper's Judicial Review and the National Political Process (1980), and John Hart Ely's Democracy and Distrust (1980), a scholarly defense of judicial activism in the post-Warren era, with certain limitations, was established. These books have paved the way for a more aggressive justification of judicial activism.
Richard Neely's How Courts Govern America gives a candid view of how and why the courts have assumed such an active role in governing. Judge Neely is the Chief Justice of the West Virginia Supreme Court of Appeals and is a former member of his state's legislature. His book is an extended argument from circumstance: the judiciary should take the initiative on many political issues because the executive and legislative branches are unable or unwilling to resolve them. Neely compares the judges to Zeus of the Prometheus legend: "They are young, immature gods with limitless and inadequately understood power" (p. 11).
In order to establish a more adequate understanding of this "limitless" power, Neely engages in the ritual debunking of the past which has become de rigueur among modern constitutional commentators:
Students of constitutional law are usually confounded by certain obvious historical absurdities in the legal opinions of judges, because it is unreasonable to say with a straight face that the founders of this nation-many of whom owned slaves-really intended the words in the Fifth Amendment to the Constitution to include blacks or that the drafters of the fourteenth Amendment-almost none of whom would have had a negro as a social guest-actually intended the words "due process" and "equal protection of the laws" to mandate complete economic and social equality for all races. . . . Lawyers, certainly, who take seriously recent U.S. Supreme Court historical scholarship as applied to the Constitution also probably believe in the Tooth Fairy and the Easter Bunny. The truth of the matter is that judges do not say these things with a straight face: they are talking in code which most of the bar understands. (pp. 17-18)
The use of precedent and reasoning from established legal principles does not fare any better under Neely's view:
Since every conceivable issue known to government can be phrased in constitutional terms, and since a craftsmanlike judge can write in proper legal form an opinion justifying almost any result which he wishes to achieve, what the Founding Fathers intended in 1789 when the Constitution was ratified is not what constitutional law is now about. Constitutional law is neither about a "constitution," nor about "law"; rather, constitutional law is about institutions and the way they interact with other institutions.(p. 10)
Neely's candor about the current state of constitutional law is astonishing. There are no legal restraints on the judges, only institutional and political restraints. Legal analysis is a myth. Judges come to exercise more power when they understand the essentially manipulative character of all legal reasoning. It allows them to accomplish more directly what heretofore had been, at best, accomplished indirectly through intuition and deception. This turns Alexander Hamilton's original defense of judicial review in The Federalist on its head. The judiciary no longer exercises judgment (in the traditional sense) but merely imposes its will. It is restrained only by force, in the form of pressure from other institutions.
The increased power of judges does not, in Neely's view, derive solely from the decline of the rule of law, traditionally understood. Judicial power has also been expanded by default, in response to the institutional failings of the elective process, the legislative branch, the executive branch, and political organizations (p. 21). Elective office now requires a substantial amount of money for a successful campaign (p. 31). This protects incumbents as well as increases the influence of special-interest groups with money to support the reelection of sympathetic officeholders (pp. 34-35). The restriction of citizen access to the political process has expanded, in Neely's opinion, the opportunities for judicial activism. "The reason that people go to court rather than to the political process to get the law changed is that the courts are cheaper" (p. 30). The courts are able to act on "general-interest" matters while the legislature is bogged down by special-interest legislation (pp. 50, 77). This occurs not by inadvertence but by design: "a legislature is designed to do nothing" (p. 55). When the legislature does act, the merits of a particular issue are often obscured by the political horse-trading (pp. 63-66). There are legislative sins of omission as well as commission. Thus the courts will take up matters not addressed by the legislatures, such as reform of the criminal law process (pp. 145-69) or reform of the juvenile system (pp. 15-16). The courts also stand ready to review administrative actions in order to ensure an accountability which the executive branch is unable to impose upon itself (pp. 109-10). According to Neely, this activism works because, on the whole, the judiciary is the most selfless and impartial of the governmental institutions (pp. 192-96).
Neely's fictional account of judicial activism is not dependent upon the knowledge or ability of individual judges. In his view, judges see a problem and resolve it about as well as competent mechanics or plumbers resolve the problems presented to them (p. 215). If the judge is inclined to follow precedent, "[t]he system yields good results because in this respect it is set up like an army: an organization designed by geniuses which can, when necessary, be executed by idiots" (p. 215). And what happens when the individual judge chooses to not follow precedent but personal preference or ideology? The problem-solving inclinations of the American judiciary will succeed only so long as there is an understood tradition of intellectual discipline, integrity, and impartiality. Neely's debunking of the analytical roots of legal reasoning serves further to erode the conditions for the rule of law. Judicial activism, unrestrained by precedent or principle will engender countervailing political pressures and thus endanger the independence and integrity of the judiciary.
The problem of providing a principled justification for judicial activism is the subject of Michael Perry's The Constitution, the Courts, and Human Rights. Perry, like Neely, feels that the past as embodied in the text of the Constitution is an insufficient guide to the resolution of constitutional law issues. "The Constitution consists of a complex of value judgments the Framers wrote into the text of the Constitution and thereby constitutionalized" (p. [unintelligible in original]). The "value judgments" label, of course, is a ground leveler and helps relegate the Framers to their own distant time and place. That they constitutionalized their value judgments and that we should not be reluctant to read the Constitution in light of our own values is the implicit message. Perry, however, does not advocate the rejection of clearly defined constitutional precepts. Rather, he urges that such clauses as the equal protection, due process, and free speech clauses not be limited to the specific understanding of the Framers (pp. ix, 69-75).
Perry attempts to articulate a functional justification of nontextually based constitutional interpretation. He calls this approach "noninterpretivism," by which he means "the determination of constitutionality by reference to a value judgment other than one constitutionalized by the Framers" (p. 11). Upon what basis should "extra-constitutional" values influence constitutional analysis? Ultimately, Perry believes, the people ought to decide which values will shape the meaning of equality, fair play, and liberty. In this, he sides with many modern constitutional commentators, including John Ely, who view democracy as a mere process, with little or no substantive content. Quoting political theorist Brian Barry, Perry "reject[s] the notion that one should build into 'democracy' any constraints on the outcome produced, such as substantive equality, respect for human rights, concern for the general welfare, personal liberty or the rule of law" (p. 3). Stephen A. Douglas's popular sovereignty doctrine appears to be alive and well in academe. Douglas did not care whether slavery was voted up or voted down. He believed the most important condition was that the majority in each jurisdiction should decide. Thus, in Douglas's view, democracy was perfectly compatible with the institution of slavery. Perry echoes Douglas's doctrine when he says democracy does not require respect for equality of persons, for human rights, or for the rule of law. The denial of substantive content to the concept of democracy brings to mind Grant Gilmore's provocative observation: "The worse the society, the more law there will be. In Hell there will be nothing but law, and due process will be meticulously observed."
Although the citizenry will ultimately impose its "values" on the issues concerning liberty, equality, and fairness, the judiciary will play an active role in the "constitutional dialogue" (p. 113). Perry does not believe, however, that every constitutional issue should be an open question for the judiciary to resolve. With respect to certain issues of federalism and separation of powers, he argues that noninterpretive review cannot be justified (p. 60). In contrast with his approval of noninterpretive review in cases concerning human rights, Perry condemns judicial activism, for example, in the area of congressional regulation of interstate commerce (pp. 46-49). Perry's concept of human rights would appear, then, not to include the right to engage in a lawful business or the right to be free from arbitrary or unduly burdensome regulation. In short, Perry's definition of human rights would appear not to include property rights. It is at this point that "human rights" begin to look suspiciously like Perry's own preferences. As a rule, academics like freedom of expression and association, privacy and personal autonomy, equality, and the right not to be stereotyped into traditional roles. Property rights, on the other hand, are tacky.
Perry builds his case for noninterpretive review in part on the limitations of interpretive review. Interpretive review, with "reference to a value judgment embodied, though not necessarily explicitly, either in some particular provision of the text of the Constitution or in the overall structure of government ordained by the Constitution" (p. 10), cannot justify many of the modern Supreme Court decisions in the areas of free speech and equal protection (pp. 64, 67-68). Relying on the historical studies of Leonard Levy and Raoul Berger, Perry argues that the intentions of the Framers were very narrow and sometimes even antithetical to modern views of liberty and equality (pp. 61-71). Lest we ever forget, "the Framers established a government whose principal constituency were propertied white males, many of whom were slaveholders" (p. 197, n. 46). The Founding, however, is not as corrupt or hypocritical as Perry seems to suggest. The Founders believed that government could be grounded on something more than narrow self-interest. By Act of Congress, they declared independence from Great Britain and formed a government grounded upon certain self-evident truths. The first of these truths was the principle of equality by which it is said that no one can govern another without obtaining consent. This principle eventually broke the back of slavery. It is probably more accurate to say that interpretive review has lost its attraction primarily because judges and scholars no longer apprehend how the principles of the Declaration of Independence shaped the Framers' understanding of the Constitution and the Bill of Rights.
Noninterpretive review, Perry believes, is more conducive to the modern recognition and evolution of human rights (pp. 100-2). Through this kind of review, the judiciary initiates a moral dialogue with other branches of government. The judicial branch is the least beholden to "established moral conventions" and "closed" morality (pp. 100-1, 111). It is "an institution that resolves moral problems not simply by looking backward to the sediment of old moralities, but ahead to emergent principles in terms of which fragments of a new moral order can be forged" (p. 111). How will the judges usher in this new moral order? Where will they find the new values? Perry believes the individual justices "will deal with human rights problems in terms of the particular political-moral criteria that are, in that justice's view, authoritative" (p. 111). It is now clear that Perry had to argue in favor of a value-free democracy in order to justify his view that judges should look to their own values. If democracy requires certain substantive rights, then Perry's whole enterprise fails because judges should attempt to articulate these rights rather than impose their preferences upon the democratic system.
By consulting what the individual justice believes to be authoritative, Perry believes that the judges collectively will act as a catalyst in the nation's moral evolution. "The moral sensibilities of the pluralistic American polity typically lag behind, and are more fragmented than, the developing insights of moral philosophy and theology" (p. 118). Non-interpretive review will require the appointment of a certain type of judge: "thoughtful, deliberate individuals not wedded to a closed morality, but committed to the notion of moral evolution and . . . themselves open to the possibility of moral growth" (p. 143). Perry acknowledges the danger of "moral retardation" (p. 115) but believes this risk is not too great in light of the greater sensitivity to moral issues today (pp. 116-18). Presumably, these judges will come from the right schools. The judge's power to interpret the Constitution has apparently developed into a power to fantasize about the Constitution or, more accurately, about society, and to see such fantasies realized, if only in part.
Although Perry encourages the judiciary to be aggressive in this moral dialogue, he recognizes some restraining factors. The appointments process will serve to prevent the naming of individuals who are too "idiosyncratic or exotic in their own moral values" (p. 143). Those who are named will be representative of the "larger pluralistic, moral culture" (p. 116). As a political check on the activism of the Supreme Court, Congress may exercise its power under the Exceptions Clause to limit the appellate jurisdiction of the Supreme Court (p. 132-35). These mechanisms help to retain a measure of accountability in judicial decisions. Perry sees the judges as ultimately subject to popular opinion, but we should note that popular opinion will be shaped by the moral dialogue engendered by the judiciary, much as Socrates tutored the slave boy in the Meno.
From both Neely's and Perry's books, we see the argument for an aggressive exercise of power by the judiciary in order to deal with the important questions of liberty, equality, and fair play. Whether because of the institutional defects of other branches or because of its own greater openness to "moral growth," the judiciary is viewed as the moving force in our democratic system. The judiciary will save democracy from its own defects and its resistance to moral evolution. Both books appear to cut off the judicial decision from its basis in fundamental political principles and tie it instead to dubious personal moral and political preferences. The prestige and independence of the judiciary remains dependent upon its continued image of impartiality and fairness in its application of the rule of law. The judges, who are sworn to uphold the Constitution, can do great damage to public confidence in the judiciary if they attempt to usurp power and govern the political institutions. It would be ironic, to say the least, if those charged with the defense of constitutional government became its chief enemies.