Magazine | June 8, 2009, Issue

The Hot Seat

The Supreme Court and the American Elite, 1789–2008, by Lucas A. Powe Jr. (Harvard, 432 pp., $29.95)

This brisk history of the Supreme Court’s constitutional decisions contains much that is admirable and interesting. Nevertheless, the main lesson advanced by the book has been commonplace at least since the fictional saloonkeeper Mr. Dooley observed that no matter what the Constitution says, the Court follows the election returns. University of Texas professor Lucas Powe’s extensive elaboration of this thesis is an indication of how depleted American attitudes toward judicial power have become. 

For the most part, Powe’s book provides a chronology of the Court’s major decisions organized by subject area. The descriptions of the cases are brief but deftly presented and integrated into their social and political context. Powe is a companionable guide, offering comments that are often dryly humorous and insightful. Moreover, while in many ways a typical academic progressive, he displays a spiritedly independent streak. For instance, he offers a partial defense of the frequently disparaged rationale of the separate-but-equal decision, Plessy v. Ferguson; he observes that the political response to the Civil Rights Act of 1964 was healthier than the reaction to the judicial edict represented by Brown v. Board of Education; and he notes that Roe v. Wade, the abortion decision, has been profoundly harmful to our politics. Powe even has something good to say about Kenneth Starr.

Nevertheless, despite the abundance of suggestive material that he draws on, Powe manages only a banal and — at that — self-contradictory theme. For the most part he echoes Mr. Dooley in arguing that the Supreme Court’s constitutional decisions can be explained as reflections of majoritarian preferences, but (less often) he explains them as expressions of elite opinion. In any event, his general point is that judicial decisions can best be understood as responses to political and cultural forces. This theme is developed with the help of several more specific but very familiar kinds of observations: that the justices often vote along party lines (as in Bush v. Gore), that regional background can explain some votes, that personality and philosophy influence legal conclusions, and that positions on public policy (as opposed to positions on law) are also important. The intellectual value of this book does not reside in its endorsement of these widely accepted tenets of modern legal realism.

Nor does the book explore in any detail the many arresting questions about legal realism that are raised by the rich history that the book sails through. How, for example, do the members of the professional elite who sit on the Court know what the majority believes or prefers? Do they consult opinion surveys? Elections? Editorials? Intuition? What explains significant cases — such as the Court’s decisions blocking much of the early New Deal or its invalidation of flag-desecration statutes — that frustrate intense majoritarian preferences? And what accounts for important episodes, including the post–Civil War Court’s restrictions on national power, in which the party identification of the justices runs counter to constitutional outcomes?

Many other questions are raised by political explanations of the Court’s behavior. To what extent are the justices aware that the legal considerations they extol in their confirmation hearings and earnestly offer in their opinions are not the real reasons for their decisions? If they are not aware, by what mechanism does it happen that outcomes that the justices believe are determined by law so often turn out to track politics? If, in contrast, the justices are aware of the salience of the political in their decision-making, are they intentionally deceiving the public when they emphasize legal explanations? 

Finally and most generally, Powe’s history raises the question whether the Constitution should be enforced in a way that reflects majoritarian political values. Why should the justices’ views about public preferences trump those of the political branches at either the national or the state level? 

Powe’s account raises such questions, but he does not pause to pursue them in any thorough way. This is not, however, to say that Powe’s history is bland or uncritical. On the contrary, like most law professors, Powe can cast a withering eye on discrete aspects of the Court’s work. Consider some characterizations of the Court’s record that are at least suggested by his narrative.

The iconic decision usually credited with establishing the power of the Court to set aside acts of Congress as unconstitutional, Marbury v. Madison, was authored by the revered chief justice John Marshall. But in this case Marshall was hardly impartial, since he was judging his own prior behavior as a member of the preceding administration, not to mention the behavior of his brother. Moreover, the Federalist Marshall resolved issues the Court had no jurisdiction to decide in order to expand judicial power over the Republican administration — and appears to have intentionally misconstrued a federal statute so as to avoid a political reaction to this expansion of the Court’s authority.

The power to set aside laws thought to be unconstitutional has not by any means resulted in the consistent enforcement of constitutional values. For instance, during significant periods, the free-speech clause did not protect dissenters’ political speech and the commerce clause did not limit congressional power.

A dizzying array of Supreme Court opinions, including famous ones, are seriously and obviously unsatisfactory as an intellectual matter. These include, according to Powe, Brown v. Board, Griswold v. Connecticut (on contraceptives), Roe, and many more. The justices have blithely overlooked obvious and fundamental problems, such as the fact that the Fourteenth Amendment, the source of most individual-rights litigation today, was enacted through coercion and military force.

Contrary to the folklore that depicts the Court as the last guardian of our legal ideals, the justices have sometimes approved significant injustices, such as the imprisonment of the socialist Eugene Debs or the forced relocation of some 112,000 people of Japanese descent during World War II, while it was the political branches that acted to correct them.

Individual justices appear to have decided cases based on personal animosities, political grievances, the hope of approbation in the press, and their allegiances in the culture wars. Important decisions may well have been based on unworthy motivations, such as getting back at an administration that had pursued policies disappointing to the justice, or avoiding the appearance of rewarding southerners for their resistance to school-desegregation decrees. Some decisions may have been based on profoundly improper motivations, such as the desire to determine the outcome of a presidential election.

Certain justices have shown stunningly broad ambitions for social reform through adjudication. Some have, for example, pursued the possibility of a constitutional right to welfare, and four justices attempted to substitute their power for the people’s authority to amend the Constitution on the issue of sexual equality. The modern Court has shown a disturbing tendency to institutional megalomania, as when it declared that its interpretations of the Constitution have the same authority as the Constitution itself and when it explained that the purpose of Roe was to end public debate about abortion.

One might expect that Powe, having acknowledged these and other troubling aspects of the history of judicial power, would come to some conclusions more novel and pointed than that the justices tend to follow the will of the majority. In this respect, however, he is representative of many in the legal profession and the political world. Sophisticated observers of the Court certainly criticize its decisions on both intellectual and practical grounds, but they take the Court’s overall role in American politics and culture as a fact of life that is not to be seriously reconsidered. 

This complacency rests on the thinnest of rationalizations. Many on the left, like Powe, see the Court as being (in the main) politically responsive, a characteristic that somehow washes away a multitude of sins. Others, mainly but not exclusively on the left, convince themselves that the justices, whatever their deficiencies, perform essential high-level functions, such as injecting moral deliberation into the political system or preserving that system from its inherent tendency toward instability and chaos. Many on the right, despite the kind of history that Powe and others have provided, cling to the hope that federal judges can be made to return to the more conventionally legalistic task of restraining majorities when necessary in order to enforce permanent constitutional principles.

The current unwillingness to think seriously about the Court’s role has important institutional ramifications. With a few exceptions, notably Congress’s unavailing effort in the Military Commissions Act of 2006 to restrict the judiciary’s control over captured enemy combatants, the political branches are reluctant to challenge federal judicial power. Over and over again during the modern era — whether the issue was the Court’s attacks on religious observances in public schools, or its campaign to achieve racial balance in those schools through forced busing, or its invalidation of flag-desecration statutes — efforts to check the Court have fallen short in Congress. More fundamentally, as George W. Bush demonstrated when he signed the Bipartisan Campaign Finance Reform Act hoping that the Court would declare it inconsistent with the free-speech clause, political dependency on the Court’s interpretative authority is deep and destructive.

Powe’s history demonstrates how large a change this complacency is in American political practice. He recounts many well-known examples of political resistance to judicial power: Before Marbury v. Madison, a Jeffersonian Congress canceled a term of the Federalist-dominated Court in order to forestall its anticipated power grabs. Pres. Andrew Jackson decided for himself about the constitutionality of a nationally chartered bank even after the Court’s pronouncements on that issue. Lincoln challenged the Dred Scott decision. Both Congress and Pres. Franklin Roosevelt resisted judicial invalidation of New Deal legislation; less well known is the fact that Roosevelt’s attorney general, Francis Biddle, expressed concern to several members of the Court that if they were to declare unconstitutional the military tribunals set up to try German saboteurs, the president would execute the Germans anyway.

Powe’s history shows that this resistance to judicial power was not confined to a few major events dominated by a few outsized political figures. Through much of American history, political checks on the Court were pervasive enough and effective enough to suggest that public attitudes toward judicial power were ruggedly independent, even defiant. In 1812, for instance, the Court held that land that had been tax-exempt when owned by an Indian tribe remained tax-exempt after being sold. New Jersey continued to tax the land anyway. Decades later, the Court held that it lacked jurisdiction to decide whether paper money was constitutional out of fear that New York politicians would ignore a declaration of unconstitutionality. In the 20th century, massive resistance to school desegregation in the South included both violent protests and a serious intellectual critique. The Court’s 1962 decision outlawing prayer in public schools was for many years widely ignored by school districts across the South and Midwest. 

Professor Powe might cast his calm, if sardonic, gaze on each of these instances and rightly observe that some were unfortunate or even ugly, and that, in any event, most ended with the Court eventually enforcing the choices of dominant political coalitions. That response would only highlight the unfortunate fact that historically Americans thought about the role of the Supreme Court harder — and with a greater sense of urgency — than many do today.

– Mr. Nagel is a professor of constitutional law at the University of Colorado School of Law and the author most recently of Unrestrained: Judicial Excess and the Mind of the American Lawyer.

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