The debate over judicial activism, judicial supremacy, and judicial review has gone into its umpteenth round here at Bench Memos. And the more I think about those three phrases, the more the gap seems to shrink between each one and the next. The apparently most neutral of the three, “judicial review,” is a phrase wholly unknown to the Constitution, its framers, or any justices of the early Supreme Court, and came to have its present meaning–describing a power to invalidate duly enacted statutes as unconstitutional–only in the early twentieth century, during a period of heightened judicial activism and a growing belief in judicial supremacy. I don’t think the emergence of the phrase under those conditions was entirely accidental.
Robert Alt’s several postings from Wednesday (beginning here), and the responses he prompted from Mark Levin and Gerry Bradley, provide much food for thought. I will follow Robert’s example by posting more than once, in the interests of keeping things a little shorter. And I’ll begin by noting where we all seem to agree on something fundamental.
Robert is quite right that each branch of government has its own independent duty to interpret the Constitution. Whatever we call what the Court has been doing in recent decades, Robert and Gerry are correct to point out that one ill effect of the Court’s growing power has been the abdication of this responsibility by both Congress and various presidents, with increasing frequency in recent decades. “Let the Court worry about the Constitution; we’re doing politics over here” seems to be the prevailing opinion in both the other branches much of the time.
This is one of the things that makes the two letters from Senator Specter to Judge Roberts so amusing. This is the same Arlen Specter who, as I pointed out here weeks ago, has spent the last 20 years in Judiciary Committee hearings demanding that nominees pledge themselves to the broadest possible reading of Marbury v. Madison–indeed, that they pledge themselves to the historical falsehood expressed in Cooper v. Aaron that Marbury established the Court as “supreme in the exposition of the law of the Constitution.”
Now suddenly Specter is concerned (as he said in his August 8 letter) about some recent decisions in which members of the Court expressed themselves in “denigrating, and, really, disrespectful” language about the Congress. Welcome back from your coma, Arlen. The Court has been speaking disdainfully of all our elected institutions, state and federal, for a very long time, longer than you have been a senator. And you have been part of the problem.
As Hadley Arkes notes in his e-mail posted below by Kathryn, if the senator now wants more deference from the Court to Congress’s fact-finding, he is making an argument that will cut against his own longstanding desire that the Court not defer one iota to Congress on the question of abortion. But for someone who has been on his knees before the altar of the judiciary for so long, Specter’s questions to Roberts aren’t half bad. It’s just that they’re the barest beginning.
Specter’s questions do invite parallel inquiries on constitutional issues he will not want to re-open. But worse, they show the senator to be still groping his way toward asserting the prerogatives of the political branches to govern the country without the meddling of a Court that has stepped outside its proper business. These are, in truth, mewling, obsequious, almost apologetic questions. Why can’t we restore the “rational basis” test for judging whether Congress has properly used its power over commerce, Specter wants to know? And where do the justices get off insisting that the Congress do its “homework” to the Court’s satisfaction before “abrogating the states’ Eleventh Amendment immunity” from their own citizens’ lawsuits, he whines?
Specter’s questions skate across the surface of our present problem, rather than plumbing its depths. What he ought to be asking is, what gave you judges the idea that the “rational basis” of federal legislation was any of your business? And where on earth did you conceive the anti-textual, anti-historical notion that there is any such thing as a states’ immunity from the suits of its own citizens under federal law?
Hadley is right on the money, though. If such questions even occurred to Specter, they would unavoidably be accompanied by even sterner questions he dare not ask, concerning the Court’s intrusion into abortion policy and other matters that concern large numbers of Americans even more.