Bench Memos

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Diminishing Returns on Judicial Activism?


Matt Franck wonders whether the exchange on “judicial activism” has “reached the point of diminishing returns.” Probably, at least insofar–as Matt rightly says–it is about what a phrase does, or should mean. Definitions as such do not much matter. But a glance at Matt’s most recent intervention shows that the subject matter (by any name) is very important indeed.

Anyway, we are made bold to offer this restatement and clarification of our position.

We understand Matt to say that our position is, somehow, caught up in two propositions about the Court and the Constitution which he criticizes. Maybe he is saying that we hold the two propositions. Either way, we don’t hold them. And we think nothing we said yesterday implies or suggests otherwise.

The first notion is “judicial supremacy.” We take it to be the proposition that whenever the Supreme Court pronounces on the meaning of a constitutional provision, that’s it–for everybody. (Matt describes what we have in mind here as the idea that “the Court has the final word on all the constitutional questions it addresses.”) To be sure, the litigants in a case are bound by the Court’s constituional interpretation, of course. But the doctrine of “judicial supremacy” goes further than that. All lower courts (state and federal) as well as all other governmental actors–Congress and president included–must treat the Court’s word as if were the Constitution. This notion of “supremacy” is contrary to the more modest views of judicial reach propounded by Jefferson, Jackson, and Lincoln (among others). Lincoln, for example, famously held that though the Taney Court settled the fate of the litigants in Dred Scott, the Court did not and could not settle the meaning of the Constitution once and for all. “If I were in Congress,” Lincoln opined, “and a vote should come up on a question whether slavery should be prohibited in a new territory, in spite of that Dred Scott decision, I would vote that it should.”

We do not subscribe to the broad notion of “judicial supremacy” described above.

We said yesterday that a litigant has a right not to have an unconstitutional rule of law applied to him by a court. But that does not imply or entail “judicial supremacy”; it means only that a court has the final say on the constitutional question it address in a particular lawsuit, for purposes of resolving the case or controversy between these parties. To say (as we do) that a court is obliged to set aside, in the course of litigation, any putative legal rule which conflicts with the Constitution does not commit us to any position on the obligations of non-parties towards the court’s idea of what the Constitution means.

The second notion is, as Matt describes it: “all constitutional questions are finally committed to [the Court] for resolution.” Matt supplies the “political question” doctrine as an example of constitutional questions committed to other (i.e., non-judicial) branches for final resolution. We agree with Matt: Some matters of constitutional meaning have no place in Court; some are finally committed to other branches.

Now, does our contention that every litigant has a right to have no unconstitutional rule of law applied to his case contradict our agreement with Matt on “political questions”? No. To say (as we do) that the meaning or limits of a particular constitutional term may be committed to a non-judicial branch is NOT to condemn some litigants to unconstitutional treatment. For one thing, most applications of the “political question” doctrine (and like matters) are jurisdictional; that is, the court from which a litigant seeks relief dismisses the case entirely, declaring the matter a “political question.” This result leaves the erstwhile party to the tender mercies of, say, the Executive or Legislative branch. But in no such instance does a court apply an unconstitutional rule of law to any litigant.

Maybe, sometimes, a court faces a constitutional question during the course of litigation in which dismissal is not an option. If the question is one committed to another branch for final resolution, and the court says so, what then do we have? Do we have a court treating a litigant according to an unconstitutional rule of law? Not at all. We have instead a court applying a constitutional rule whose content, the Constitution tells the court, is to be supplied by another branch. The court that applies, in turn, this rule to a litigant does what the Constitution requires the court to do.


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