For the March 9 issue of National Review, I wrote a review of Damon Root’s Overruled: The Long War for Control of the U.S. Supreme Court.
Root himself has taken notice of the review, and taken issue with some of its arguments, on Reason magazine’s website. Here I’d like to take the opportunity to refute the arguments Root has deployed in response to my original criticisms. (For those who are interested, Root’s rejoinder also set off an exchange between him and National Review’s Ramesh Ponnuru. See here , here , and here.)
Essentially, my review criticizes the libertarian constitutionalism that Root is promoting as inconsistent with the Constitution as the founders understood it. In particular, I contend that the founders were believers in judicial restraint or judicial deference, while Root argues for a kind of libertarian judicial activism in defense of individual rights. The argument is to some extent historical. Root’s book emphasizes the early 20th century progressives who were defenders of judicial restraint, and who are strange forefathers for contemporary conservatives. I, in contrast, contend that judicial restraint can really be traced back to the founding.
In making this argument, I point out in my review that Chief Justice John Marshall, writing in Fletcher v. Peck (1810), made remarks that sound like a call for judicial restraint — and was joined in those remarks by a majority of the Supreme Court. Root does not contest my reading of Marshall here, but he points out that, on the other side of the ledger, Marshall also wrote the Court’s famous opinion in Marbury v. Madison (1803), the Court’s first exercise of judicial review to strike down part of a federal law—a ruling that Thomas Jefferson believed, as Root observes, was a bold act of judicial usurpation.
I would make a number of points in response. First, the fact that Jefferson regarded Marbury as an act of judicial usurpation rather than an act of proper judicial modesty does not show that Jefferson was correct. Jefferson held an unreasonably narrow view of almost all of the powers of the federal government. He thought the government could not acquire new territory, although this would seem to be a pretty straightforward use of the treaty power, and he thought a military academy was not authorized by the Constitution, even though the Constitution empowers Congress to raise armies and provide rules for their government, and to do whatever is “necessary and proper” in relation to those ends. In sum, that Thomas Jefferson saw impermissible judicial activism in the Marbury ruling is not surprising, because he had a tendency to see impermissible activism even in the most ordinary operations of the federal government.
Second, while it is true that Marbury does endorse—in Root’s words—“a rather robust vision of judicial power,” it does not follow that it endorses the kind of robust judicial power that Root desires. The power put forward in Marbury is robust to the extent that it invests the Supreme Court with the authority to declare laws void when they are contrary to the Constitution. Everybody today, however, acknowledges that the Court legitimately possesses such an authority. The question of judicial deference versus judicial activism has to do with how that undoubted authority should be exercised. Should it be used only in clear cases of violation of the Constitution? Or should it be used in cases where there is no clear violation, but where the Court can work up a more or less plausible argument that there is one? By standing for judicial review, Marbury does not necessarily stand for judicial activism.
This argument, by the way, points to a problem with Root’s position as he frames it in his book. He often sets up a conflict between two alternatives: either the Supreme Court is obliged to defend our rights, or it is supposed to defer to the majority will. This is a false dichotomy. The proponent of judicial restraint does not deny that the Court should vindicate our constitutional rights; he agrees that this is the Court’s duty. But the Court can do that and also observe a duty to defer to the majority. It does this by striking down laws only when they clearly violate the Constitution.
In any case, one would have to strain to present Marbury as an example of the kind of judicial activism Root wants. In that case, the Court held that Marbury had a right to the commission he was suing to recover, but nevertheless refused to vindicate that right, because the Court—so the majority believed—lacked the constitutional authority to give relief in the case that was presented. Marbury, in other words, does not stand for the view that the Court is simply empowered to defend rights, but instead that it can only defend such rights as it has a constitutional authority to defend.
Root also brings James Madison in as a possible founding-era defender of judicial activism. Madison, he notes, was the architect of the Bill of Rights. As such, he held that the judiciary would act as the “guardian of those rights” and in fact that the courts would be “an impenetrable bulwark against every assumption of power in the legislative or executive.”
Again, however, this just begs the question. All that Madison is saying here is that the Bill of Rights will place additional matter for judicial review in the Constitution. Nobody would deny that, and no conservative defender of judicial restraint today would say that courts should defer to the majority when the majority passes laws that clearly violate the Bill of Rights. Judicial restraint does not mean never striking down laws. It means being reluctant to strike them down, out of a deference to the legitimate political authority of the majority.
By adopting this position, the conservative advocate of judicial restraint tries to harmonize, as much as possible, the rights articulated in the Constitution with the majority’s constitutional right to govern the country. In contrast, the libertarian constitutionalism that Root advocates overinflates one of these principles at the expense of the other. It sacrifices the majority’s power to govern more than it should by endorsing a “presumption of liberty” instead of a “presumption of constitutionality.”
Finally, Root redoubles his book’s attempt to discredit judicial restraint by linking it to progressives such as Oliver Wendell Holmes, Jr. Here I think there are both historical and logical problems with Root’s argument.
Historically, it is true that the progressives were proponents of judicial deference, that some modern conservatives (such as Robert Bork) learned about judicial deference from progressive law professors (such as Alexander Bickel), and that some modern Republicans (such as Bob Dole) have tried to make judicial deference intelligible and acceptable to liberals by reminding them that it was once defended by progressives. None of this, however, proves that judicial deference is something progressives invented for progressive purposes. On the contrary, Holmes could only appeal to judicial deference because it was already a long established principle of American constitutional jurisprudence.
Logically, the fact that the progressives were in favor of something does not prove that it is wrong. Besides judicial deference, American progressives advocated, among other things, political party primaries, the right of women to vote, and civil service reform. All of these things should be evaluated on their merits. In his book, Root sets up Stephen Field as the hero of an early libertarian constitutionalism, or of a judicial activism determined to vindicate the liberty of contract. It so happens—although Root does not mention it in his book—that Field also joined with the majority of the Supreme Court in Plessy v. Ferguson (1896) in holding that the Equal Protection Clause permits racial segregation. It would be silly for me to try to use Field’s error regarding the equal protection clause to discredit his liberty of contract jurisprudence. It is similarly mistaken for Root to suggest that the progressives’ errors about so many others things discredit their understanding of judicial restraint.