When the Supreme Court ended its latest term in June, everyone agreed it had been a momentous one. In its last week alone, the Court had ruled that police must continue to give the Miranda warning to suspects; that government may provide certain forms of aid to parochial schools; that states may not establish election rules that keep political parties from choosing their own candidates; that school districts may not let students pick speakers who might deliver invocations (or anything else that resembles a prayer) before football games; that states may single out anti-abortion speech for special restrictions; that states cannot force the Boy Scouts to admit openly homosexual scoutmasters; and-the show-stopper of the term-that states may not prohibit partial-birth abortion.
Once the Court finished speaking, activists and re porters tried to glean the meaning of it all. Conser vatives cheered some rulings, liberals others. The stakes in the presidential election were said to have been raised: So many decisions were close that one or two appointments by George W. Bush or Al Gore would make the difference on matters such as federalism, abortion, and racial preferences.
Almost nobody remarked on what was truly remarkable about the Court’s term, which was not the pattern of its decisions but the fact that it was weighing in on all these subjects at all. Alexander Hamilton supposed that the judiciary would be the “least dangerous” branch of the federal government, commanding as it did neither sword nor purse. Yet it is now a commonplace of political conversation that what matters most about the presidency is the power to select the people who actually rule the country-federal judges. That is what the Republican and Democratic parties tell their activists. Given the scope of the Court’s decisions, it is hard to say that they are wrong.
Also remarkable is the notion that the Constitution-a wondrously brief document-could possibly settle so many policy questions. That the Constitution protects a right to commit partial-birth abortion or requires the Miranda warnings is not, to say the least, clear from its text. To deepen the puzzle, the Court does not quite say that these policies are in the Constitution.
The distance from the Constitution to the Court’s decisions, then, is vast. It is worth examining in some detail the intellectual and rhetorical moves the justices use to travel it. These moves, I submit, are simply elaborate rationalizations and deceptions. They deceive the public into thinking that the Court is engaged in interpreting the Constitution, even as they rationalize what it is really engaged in: judicial rule. The Court is lying, to us and to itself, and its shaky rationalizations are causing it ever more visible strain.
When contentious moral issues come to the Supreme Court, its first step is to assert jurisdiction by going up, and then down, one level of abstraction. The Bill of Rights bars soldiers from camp ing out in civilians’ homes without their consent and stops the police from conducting “unreasonable searches and seizures.” Therefore, the Court reasons, the Constitution protects privacy. The alleged right to abortion can be seen-supposedly-as an aspect of privacy. Thus, the Constitution protects (or at least has something to say about) abortion.
One way of looking at this move is that the Court has treated as authoritative the questions the Constitution raises, not the answers it gives. Commenting on cases involving school prayer and abortion, Notre Dame law professor Gerard Bradley has explained that “the Supreme Court has treated the Constitution . . . as delineating the boundaries of subject matters (religion, privacy) over which law-making authority has been invested in courts. Actually the plural (subject ‘matters’) may be gratuitous. There is one problem: the individual v. the demands of the organized society. And this problem gives rise to an unlimited jurisdiction to make law.”
Confronting this problem, the Court then assumes that voters and legislatures are unable to handle it. In Court opinions, these characters are liable to make an appearance in the guise of “intolerant majorities.” There are also frequent references to “majority will,” always a blind unreasoning force devoid of principle. Again and again the Court says that the “mere fact of majority sentiment,” or “opinion,” or “feeling,” or (notoriously, in a 1996 gay-rights case) “animus” cannot justify a law. But, as Bradley has observed, nobody really believes that the mere fact of an opinion or feeling could provide reasons for action, independent of the reasons one has for holding that opinion or feeling. The point of the Court’s rhetoric is slyly to associate the Court itself with reason, and the people and legislators with prejudice and other forms of irrationality, and to frame a problem which only judicial rule can solve.
And this move is not confined to decisions on moral issues; it is rather the typical move of the modern Supreme Court. The Court applies a “rational-basis test” in many cases: If it finds that a legislative classification (treating the sexes differently, for example) has no rational basis, it will strike it down. The test implies a rather harsh, if usually unexamined, implicit criticism of lawmakers-they have enacted laws that are not just wrong, but have no “rational basis.”
But the rational-basis test is empty. In Constitutional Cultures, Robert Nagel powerfully demonstrates that it doesn’t do the analytical work it purports to do. Instead, that work is done by sleight of hand: The Court concludes that some law has no rational basis by ignoring or rejecting some of its purposes, by refusing to recognize that a law can have multiple purposes in tension with each other, or by manipulating the level of abstraction at which a purpose is defined.
Something akin to the rational-basis test pops up again and again in constitutional law. As Nagel writes,
Some of the words keep changing, but the tune continues to sound suspiciously familiar. A “time, place, and manner” restriction on speech, for example, must serve a significant governmental interest. The government may restrict commercial speech if its interest is substantial and if its regulation directly advances that interest. . . . To justify discrimination against a “suspect classification,” the government must show that its purpose is substantial and that the distinction is necessary for accomplishing that purpose. . . . Whether administrative procedures comply with due process standards depends in part on the weight of the government’s interest. State regulations that restrict interstate commerce must serve a legitimate local purpose and there must not be alternate means for promoting that purpose.
Etc. As Nagel dryly observes, “to anyone not inured to the Court’s methods, it must be perplexing that constitutional provisions apparently so different substantively should all turn out to have such similar meaning operationally. Indeed, the coincidence is sufficiently striking that the uninitiated might wonder how much the Court’s ‘interpretations’ could possibly have to do with the Constitution itself.”
All these tests-and it is significant in itself that the Court is forever conjuring “tests” and “hurdles” and “requirements” that other people “must satisfy” or “must show” they meet-conceal the scandal of wide judicial discretion under layers of verbiage. What purposes are “legitimate”? How “significant” does an interest have to be to count as “significant”? These are legislative judgments pretending to be legal ones.
That was one of Justice Antonin Scalia’s complaints about the recent decision on partial-birth abortion. Bans on the practice, Justice John Paul Stevens brusquely declared, are “irrational.” The Court found, moreover, that the bans violated a test the Court had established in a previous abortion case: They imposed an “undue burden” on the right to abortion. As Scalia wrote, “what I consider to be an ‘undue burden’ is different from what the majority considers to be an ‘undue burden’-a conclusion that can not be demonstrated true or false by factual inquiry or legal reasoning. It is a value judgment. . . . upon the pure policy question whether this limitation upon abortion is ‘undue’-i.e., goes too far.” The test is simply a way to settle abortion policy by “a democratic vote of nine lawyers.”
The mystique of the Supreme Court is rooted in a claim that it ensures the rule of law. But it increasingly represents the rule of nine people-and, often enough, of one woman. Justice Sandra Day O’Connor is the Court’s most frequent swing vote; indeed, it may be more appropriate to refer to “the O’Connor Court” than to “the Rehnquist Court.” Her vote decides which racial preferences will stand, which fall; it was her vote last year that had school districts across the country scrambling to come up with sexual-harassment policies for the playground. Most of the legal briefs in the recent Miranda-rights case were pitched to her. And O’Connor delights in complicated tests. In a case on preferences, she once articulated a standard of “strict scrutiny” that she said would be “strict in theory” but not “fatal in fact.” Her decisions often turn on the picayune facts of a case, in the spirit of all those decisions governing how close a creche can be to city hall.
O’Connor’s defenders-such as Cass Sunstein, a law professor at the University of Chicago and author of One Case at a Time: Judicial Minimalism on the Supreme Court-praise her holdings for being narrow rather than sweeping, pedestrian rather than grandiose. But the price of this narrowness is a loss of predictability and clarity: Because she announces no clear principles, everyone, lower federal courts included, is left guessing what the outcome of the next case will be. Her decisions invite new cases, in which she can refine her tests further. Her approach, in other words, amounts to the assumption of the power to issue arbitrary vetoes. The late Justice William Brennan once said of Ed Meese’s originalism that it was “arrogance cloaked as humility.” The words are an apt description of Justice O’Connor’s jurisprudence.
A JUDICIAL BREZHNEV DOCTRINE
Until recently, it was the journalistic fashion to describe the Court as humble, moderate, even conservative. Never mind that on the most politically charged moral questions before it-gay rights, euthanasia, abortion-it almost always came down on the “progressive” side or implicitly reserved its right to do so in the future. (The Boy Scouts case just handed down is, admittedly, an exception to this pattern.) Moreover, a sort of judicial Brezhnev doctrine seems to be in operation: What encroachments the Court has made on democratic self- government, it will keep. No major decision of the Warren Court has been overruled.
The Court’s latest term, however, has had even some non-conservatives complaining about judicial supremacy. In The New Republic, Jeffrey Rosen recently wrote that “the defining characteristic of this Court, like [the Warren Court], is hubris. Both combine haughty declarations of judicial supremacy with contempt for the competing views of the political branches.” The Washington Post’s wrap-up at term’s end quoted law professors who contrasted the Court’s willingness to overturn congressional acts-24 have been struck down in the last five years-with its unwillingness to admit mistakes on its own part. Stuart Taylor Jr., a highly respected legal journalist of mildly liberal inclination, pointed out that the Court’s activism put it to the left of the public.
Leftist legal scholar Mark Tushnet has also been questioning the aggrandizement of the courts, but in a slightly different way. Tushnet, like Sunstein, is enamored of a philosophy of judicial restraint that preserves liberal precedents for all time. What all these second thoughts about the Court reflect, in large part, is unease with the Court’s modest revival of federalism and more aggressive restriction of programs that grant preferences based on race (or sex). These decisions, liberals argue, are a form of conservative activism that should be resisted.
Conservatives can reasonably object that federalism and color blindness, unlike the liberal innovations of the last half-century, actually have constitutional warrant. My own view is that conservatives are on stronger ground on federalism than on race. Their premise, however, is sound: The notion of judicial activism presupposes a constitutional ideal from which the activists are deviating. Whether the Court is right to strike down a law or program cannot be evaluated, in other words, apart from the constitutionality of that law or program; and what liberals want is not so much liberation from the tutelage of the Court as liberation from the discipline of the Constitution itself.
And yet the liberals still have a point: Conservatives have been too quick to look to the courts for help in reining in the federal government. So far, the Court’s federalist decisions have restricted Congress and the executive branch, but not the federal courts. In this context, such cases look less like a revival of federalism than like an assault on the separation of powers. Some conservatives, such as George Will, cheered Boerne v. Flores, a 1997 decision in which the Court said that Congress could not force states and localities to conform to its view of religious liberty. But the Court’s reason for reaching this ostensibly federalist result was that it alone had the power to define the contours of religious liberty; if the Court changed its mind, the states and localities would have to conform to it.
Relying on judicial power to promote federalism is likely to prove self-defeating, because that power is itself a threat to federalism. As Amherst political theorist Hadley Arkes has pointed out, Congress is by its very structure more concerned about federalism than the courts are. He uses Roe v. Wade as an illustration: Congress would never have done what the Court did, sweeping away the laws of all fifty states.
ACHIEVING JUDICIAL RULE
The last week of the term provided two more examples to strengthen Arkes’s argument. In Stenberg v. Carhart, the Court struck down a ban on partial-birth abortion that Nebraska’s legislature had passed 99 to 1. (Only one legislator in a hundred met Justice Stevens’s standard of rationality.) By implication, the Court nullified similar laws passed by 30 other states. In Dickerson v. United States, it reaffirmed that police are constitutionally required to inform suspects of their rights. Both decisions were setbacks for federalism.
They were also illustrations of how far the Court has traveled from the Constitution. In each case, the Court more or less gave up the claim that its ruling was firmly grounded in the Constitution. In Planned Parenthood v. Casey-the 1992 case on which the Court primarily relied in Stenberg-the Court had already suggested that Roe v. Wade was probably wrongly decided, but had chosen to stick with it anyway. In Dickerson, the Court declared that it would continue to require the Miranda warnings, while refusing to say that the Constitution itself requires them. In both decisions, persistence in error was justified, in part, by social expectations: Women had grown accustomed to the abortion right, and the Miranda warnings “have become part of our national culture.” (Perhaps the Court is announcing a new Hill Street Blues Doctrine: If a decision gets mentioned in enough prime-time television shows, it’s here to stay.) The Court is saying that the more consequential and far-reaching its mistakes are, the more stubbornly it will cling to them.
It is an audacious argument, and the Court is having difficulty making it. In Dickerson, the Court refers anxiously to Miranda’s “constitutional underpinnings,” its status as “a constitutional decision” that is “constitutionally based”-but, as Justice Scalia notes, the Court’s “carefully couched iterations” never quite say that refusing to issue the Miranda warnings would violate the Constitution. The Casey Court, unable to appeal to the Constitution, made a plaintive appeal to the people themselves to accept the legitimacy of its ruling. If it overruled Roe, the Court argued, public respect for the Court would be diminished-and “so would the country be in its very ability to see itself through its constitutional ideals.”
To which the only appropriate response is: What the heck is the Court talking about? Professor Bradley offers a translation: “The key variables in the legitimacy equation are now Court, people, and constitutional ideals. The burden of the passage is to justify dispensing with the Constitution by positing some galvanizing, mystical bond among the three.” The Court speaks for us; indeed, it is called, it says, “to speak before all others” for our constitutional ideals. As Bradley puts it: “We will be your Court, and you will be our people.”
The alternative vaguely sketched by the Court is divisiveness and even violence: That’s the rhetorical point of the Court’s call in Casey for “the contending sides of a national controversy to end their national division.” Democracy cannot handle hot-button issues peacefully-the public, remember, emerges through the prism of the Court’s opinions as given to irrational spasms of anger and prejudice.
And so, at last, the Court reaches its destination: arguing, even pleading, for oligarchy. The public must be unified from the bench. Judicial rule does not, of course, mean that the Supreme Court actually decides everything. The justices will not raise taxes (although at least one federal judge has done so in the past). We may safely predict that the justices will not concern themselves with traffic rules, and the Congress will not close up shop. The courts have not ventured into foreign policy, despite occasional temptations and opportunities. What judicial rule means is that the Court may in principle decide anything, and claims the jurisdiction to do so.
It is this extra-constitutional claim that accounts for the evasiveness and bitterness of recent terms: for Chief Justice Rehnquist’s embarrassed silence in Dickerson about previous, contradictory opinions he had written for the Court, and for Justice Scalia’s dissents-the most furious in the Court’s history-attempting to demystify what the Court is up to.