Stone/Marshall Critique of Judicial Conservatism—Part 2

by Ed Whelan

See Part 1 here.

Let’s now consider the alternative to originalism that law professors Geoffrey R. Stone and William P. Marshall advocate in their six-page American Constitution Society essay.

According to Stone and Marshall, their “principled approach to constitutional interpretation” has “two essential elements”:

First, courts reviewing governmental action must have as their “starting point … a presumption of judicial restraint.” That presumption is necessary because, “in a self-governing society, courts must generally defer to the preferences of the majority.”

Second, majority rule is imperfect, and courts are “to play a central role in addressing … concerns” that

political majorities may be tempted to enact laws that entrench their own authority; that driven by fear, self-interest, or short-sightedness, majorities may sometimes too quickly cast aside fundamental freedoms and critical structural limitations; and that prejudice, hostility, and intolerance may at times lead governing majorities to give short shrift to the legitimate needs and interests of political, religious, racial, and other minorities.

The regular Bench Memos reader will not be surprised that I fully embrace Stone’s and Marshall’s first essential element of a presumption of judicial restraint. But lip service aside, one has to puzzle over what is left of that element when it is combined with their second element.

Stone and Marshall deepen that puzzle when they assert that “the Supreme Court has properly departed from the presumption of judicial restraint

when governing majorities disadvantage historically vulnerable groups (such as African Americans, ethnic minorities, political dissidents, religious dissenters, women, and persons accused of crime); when they use their authority to stifle critics, entrench their own political power, or undermine the constitutional structure of checks and balances; and when majorities act in moments of high crisis.

Stone and Marshall make no effort to derive these presumption-trumping circumstances from the constitutional text—some of those circumstances would be easy to derive, others much less so—nor do they put any discernible limit on these circumstances: What’s the test of whether a group is “historically vulnerable”? (Note that their list of “historically vulnerable groups” is introduced by “such as” and is therefore not exhaustive.) What distinguishes an unexceptional exercise of political power from a problematic entrenchment? What are “moments of high crisis”?

Note, further, that Stone and Marshall are merely stating their judgment that the Supreme Court “has properly departed from the presumption of judicial restraint” in those circumstances. They don’t state that those are the only circumstances in which the Court could properly depart from the presumption of judicial restraint.

My suspicion that Stone’s and Marshall’s second element is infinitely malleable is bolstered by their failure to identify a single liberal Supreme Court ruling that they believe was unjustified as well as by their including in their “series of landmark decisions that faithfully interpret and apply” their approach such cases as Roe v. Wade (my link is to my 2005 Senate testimony on Roe)and Boumediene v. Bush (holding that aliens detained as enemy combatants at Guantanamo have a constitutional habeas right to challenge the basis of their detention in the course of an ongoing war). No constitutional approach that treats these cases as sound (or even as plausible) can be said to take judicial restraint seriously.

In what I expect will be my last post in this series, I will offer some additional comments on Stone’s and Marshall’s broader claim that their approach is faithful to what they call “The Framers’ Constitution.”