Liberal politics and the judiciary: The supreme court and american democracy (original) (raw)
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The Law of Freedom: The Supreme Court and Democracy- Introduction
Cambridge University Press, 2023
This book addresses a puzzle about liberal democracy and rule of law: If democracy’s legitimating value is the autonomy of the people, how can an impartial court transform the terms of that autonomy? To address that puzzle, this book does two things. First, it frames and answers the question in philosophical terms. The dignity of democratic autonomy and the justice of rule of law neutrality are both essential for legitimate liberal democracy where the people rule but individual rights are respected. But in the context of electoral process, it creates a counterpopular dilemma: if courts dictate terms of elections, they intrude upon the extent of democratic autonomy. The best answer cannot solve this dilemma. It can only ameliorate it. The best approach is for courts to engage in ongoing contestation over the nature of freedom, directed toward what electoral procedures will best serve popular self-rule. Second, this book evaluates the American election law doctrine in light of this dilemma, and this answer. It shows how the Supreme Court’s transformation of democratic process has consisted of a long-running, fiercely contested debate over the ideal of popular autonomy. Moreover, this debate has settled into two opposed sides: a conservative view that advances a libertarian understanding of just elections and a progressive view that advances an egalitarian understanding. Conservative libertarians see elections as a means for converting private power and position into political representation. They wish to maintain elections as a zone of private power and reject both state action and judicial interpretation that intrudes upon private power. Progressive egalitarians see elections as an expression of the mutualist aspects of a democracy that aspires toward civic equality. They wish to use the bench to advance a vision of democracy as a shared space of rule by equals. This struggle over the meaning of freedom on the Supreme Court has shaped American democracy, and American life. The struggle reflects partisan allegiances, but it shows that deeper than the partisan divide is a philosophical dispute over the meaning of liberty. The Supreme Court’s battle shows a shared commitment to the ideal of liberty, as well as how deeply the different justices understand liberty, and how much these divergent understandings mean for American democracy.
Book Review of The Supreme Court and Constitutional Democracy
1986
The judicial branch is the clear focus of constitutional decisionmaking; national debate regarding abortion, busing, school prayer, and the rights of the criminally accused generally fastens on the Supreme Court's decisions. Concerned that "[t]oday citizens, members of Congress and presidents alike look to the courts for all constitutional deliberation -that is, for all decisions involving the deepest questions of national direction," 1 John Agresto emphasizes the need for the executive and Congress to check the judiciary and to develop constitutional law by interpreting the Constitution independently. Agresta's work, The Supreme Court and Constitutional Democracy, offers a new perspective on the ongoing debate over constitutional interpretation and the role of the Supreme Court in American government.
The Yale Law Journal, 1981
The Yale Law Journal Connecticut, 2 Eisenstadt v. Baird,' Roe v. Wade, 4 and Doe v. Commonwealth's Attorney. 5 The judges and scholars who support judicial intervention usually acknowledge that the rights at stake-variously described in terms of privacy, procreational choice, sexual autonomy, lifestyle choices, and intimate association-are not specified by the text or original history of the Constitution. They argue that the judiciary is nonetheless authorized, if not duty-bound, to protect individua,5 against government interference with these rights, which can be discovered in conventional morality or derived through the methods of philosophy and adjudication. The critics argue that judicial review may be exercised only to enforce explicit constitutional provisions or to ensure the integrity of representative government. They deny that shared social values or fundamental rights exist or, in any case, that courts can ascertain them. The fundamental rights controversy deserves a place in a symposium on legal scholarship: It is concerned with issues that lie at the core of contemporary constitutional discourse-judicial methodology, institutional competence, and democratic theory. My own scholarly agenda also influenced this choice of topic. Several years ago, I started work on an affirmative theory of constitutional decisionmaking based on interpretation-broadly conceived-of the history, structure, and values of American society. I began by examining, and rejecting, "originalist" constitutional interpretation (that is, interpretation rooted in the text and original understanding of the Constitution). 6 The publication of John Hart Ely's important proposals for value-neutral "representation-reinforcing" modes of judicial review 7 occasioned a detour, which confirmed my belief that such process-oriented strate-2. 381 U.S. 479 (1965). Griswold held that a Connecticut statute prohibiting the use of contraceptives could not be applied to married couples. Justice Douglas's opinion for the Court relied on "penumbras" of various provisions of the Bill of Rights. Concurring Justices invoked the Ninth Amendment and the due process clause of the Fourteenth Amendment. The Court has not since recurred to penumbral analysis. 3. 405 U.S. 438 (1972). Eisenstadt invalidated a statute that, in effect, prohibited distributing contraceptives to unmarried persons. The Court remarked that "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id. at 453. 4. 410 U.S. 113 (1973). Roe invalidated a Texas statute prohibiting abortions before as well as after viability. 5. 403 F. Supp. 1199 (E.D. Va. 1975), alf'd mem., 425 U.S. 901 (1976). Doe sustained Virginia's sodomy statute as applied to private consensual homosexual conduct. The Supreme Court affirmed without opinion. Justices Brennan, Marshall, and Stevens voted to note probable jurisdiction and set the case for argument. 6.
Neither Trumps nor Interests: Rights, Pluralism, and the Recovery of Constitutional Judgment
Cleveland State Law Review, Volume 70, No. 3, Pp. 393-458, 2022
This Article develops a novel framework for the adjudication of rights in an age of partisan and societal polarization. In so doing, it defends judicial review in a divided polity on new grounds. The Article makes two broad interventions. First, the Article cautions against recent calls to shift rights adjudication in the United States from Dworkinian categoricalism toward proportionality analysis. Such calls correctly identify how categoricalism, by embracing the absolute nature of rights as "trumps," pits citizens harshly against one another. The problem, however, is that proportionality's proponents fail to see how it imposes a rights absolutism of its own. Proportionality reduces pluralism in rights adjudication to the degree of justified infringement of a right whose normative content is otherwise held to be unchanging. This trades constitutional hermeneutics for a far narrower, more impoverished view of the judicial role and the purpose of rights adjudication: a view of goal-oriented, technical policy refinement that offers citizens no resources to better comprehend the disagreements over public values that divide them. To demonstrate the stakes of this criticism, I draw on comparative constitutional scholarship concerning the limitations of European jurisprudence that employs proportionality analysis-and examine how such limitations align neatly with criticisms leveled at American categoricalism in various areas of US constitutional law. Second, the Article offers an alternative. American constitutional theory requires a novel guiding light, which I term "narrative doctrinalism." On this model, judicial review aims not merely to constrain democracy (categoricalism) or justify governance (proportionality) but instead to make possible a distinctive quality of democratic judgment. Set in a narrative frame, rights are neither trumps nor pragmatic interests to be balanced in proportion, but nodal commitments made in time. Their scope of application is not unlimited; but neither is their meaning timeless. Rights have pasts and futures that demand historically-grounded interpretation, which judges are uniquely well-positioned to provide. The Article develops narrative doctrinalism's normative and methodological insights in detail. It then applies them to a salient case from a recent Supreme Court term: Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case whose resolution continues to guide—for good or ill—how the Court disposes of analogous conflicts among rights regimes in other areas of law. Author's note, December 2024: Jess Williams, in light of her careful readings of the work of Professors Greene, Jackson, and Price, encouraged me to frame my intervention as concerning a culture of legal and political argument. This was the direction of Jess’s own intellectual interests, which were promising and hopeful. I dedicate this work to her memory.
From Bakke to Grutter and Gratz : The Supreme Court as a Policymaking Institution
Review of Policy Research, 2004
Finding the best means for ensuring equal opportunities for women and minorities has long been controversial and initial efforts to do so were addressed by executive orders, and later the historic Civil Rights Act of 1964. However, this paper argues, since its initial Bakke decision in 1978, it is the Supreme Court that has set policy in this area. In the twenty-five years between that decision and the recent Gratz and Grutter decisions, the court has shifted in its stance, in many cases declaring unconstitutional what it once sanctioned. That shift has not resulted from changes in laws or new amendments to the Constitution, nor can it be seen as reflecting public opinion, as that is not clear-cut. Rather, affirmative action policy has reflected the ideological stances of the justices sitting at the time a decision was rendered. The paper concludes with an assessment as to what this means for a democracy. The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court. .. the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Abraham Lincoln, First Inaugural Address In June of 2003, the Supreme Court handed down two landmark decisions defining the acceptable parameters of the use of affirmative action in university admissions decisions (Grutter v. Bollinger and Gratz v. Bollinger). The importance of these cases was reflected in many ways, from the dozens of organizations and individuals who hoped to influence the outcome through amicus briefs to the extensive news coverage the cases received. Commentators were quick to express their support or opposition to the verdict, but what was left unquestioned was whether it should be the Supreme Court, the unelected branch of government, who sets policy in this area. The purpose of this paper is to examine the court's policymaking role through the lens of affirmative action. The extent to which the Supreme Court should and does engage in policymaking has long been controversial. The justices do not do so directly, of course, but rather through the power of judicial review; that is, in declaring policies to be in violation of law or the Constitution. It is clear from Federalist 78 that Alexander Hamilton (1961) saw this power as necessary to protect "the minority party in the community" from "serious oppression" that may occur if the majority has a mind to enact legislation counter to the will of the people as represented in the Constitution. From another point of view, this creates what Alexander Bickel (1962) called the "countermajoritarian difficulty." He wrote: "when the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people of the here and now; it exercises control, not in behalf of the prevailing majority, but against it" (Bickel, 1962, pp. 16-17).