Posted: July 14, 2014
A review of The Supreme Court and Constitutional Democracy, by John Agresto
n ancient saying holds that it takes a good man to seek the middle way and a wise man to find it. But the middle path often fails to recommend itself to writers and thinkers, for, the world being what it is, the middle way as often as not earns the blame or contempt of those on either side. Even though he expects his book The Supreme Court and Constitutional Democracy "to annoy almost everyone," John Agresto strives boldly to find the path between liberals and conservatives. He seeks that middle way not out of a mere desire to compromise or accommodate, but out of a conviction that the Court's role in the American political regime is best understood as a tension which must be retained, rather than resolved in the manner typical of contemporary liberal comment on the Court, or contemporary conservative polemic against the Court.
Liberals now generally like the Court and favor it for its innovation in the realms of liberties protected and equalities secured. Liberal commentators, such as John Hart Ely, Jesse Choper, Ronald Dworkin, and Michael Perry defend an activist and creative Court. Conservatives, who before the Warren Court tended to like the Court more than liberals did, are in one degree or another disaffected from the Court in its present role. They now press for one or more forms of "court-curbing": strict constructionism, that is, a return to the historically authentic constitutional text; judicial self-restraint and deference to the political branches; more active use or threats of the impeachment power; constitutional amendments to undo various court actions; and lesser things like adjusting the Court's appellate jurisdiction, appointing more conservative justices, and regulating such technical legal matters as standing. Agresto sees the limits of both the liberal and conservative positions, and accepts neither their underlying analyses of the role of the Court nor their specific "solutions." He surely will annoy many.
The spirit of the early work of Alexander Bickel hovers over this book. Twenty years ago, Bickel too rejected the ways of left and right and sought to present a vision of the Court in terms of "tensions." But Agresto's analysis of the tensions characterizing the Court's role in American government differs from Bickel's. He also rejects Bickel's prescription for the Court of judicial restraint through the exercise of "the passive virtues" of avoiding constitutional pronouncement on many if not most occasions.
Bickel identified two particular tensions in the Supreme Court's role. As he said, "The root difficulty is that judicial review is a counter-majoritarian force in our system." It is imperfectly democratic, because "the heart of the democratic faith is government by the consent of the governed." The Court nonetheless has a justifiable role because in every "good society . . . government should serve not only what we conceive from time to time to be our immediate material needs but also certain enduring values." Thus, the first tension is between consent or majority rule, and principle, or, as Agresto puts it, between "democracy" and "constitutionalism." For both Agresto and Bickel, one cannot simply give up one side of the pair: to give up rule by majority will, as, ironically, many liberal defenders of the Court appear willing to do, or to endorse clear legislative or democratic supremacy, as, doubly ironically, many conservatives for the moment seem to wish to do.
Bickel's way of responding to this tension was his doctrine of self-restraint and the passive virtues. The Court serves principles best where it obtrudes only sparingly on the democratic process of rule by consent. That self-abnegatory role is mandated not only because majority rule is itself a principle of the good society (and thus requires respect along with any other principles the Court may speak for), but also because of a certain problem regarding the application of principle to practice. This problem constituted a second tension for Bickel. Practical life requires "many compromises." The Supreme Court in its attachment to principle cannot be so imprudent as to prevent necessary measures, but in bending to what is necessary, it ought not to give the merely expedient constitutional legitimacy. Thus, from Bickel's perspective, the arts of avoidance-neither forbidding nor endorsing-are among the Court's most precious tools for doing its job properly.
While Agresto pays some slight obeisance to this second tension of Bickel's, as when he blames the recent Courts for perhaps imprudently applying their principles in areas such as busing, this focus is largely replaced in his scheme by the development of a tension hardly present in Bickel. In a brief but very deftly done discussion, Agresto presents an historical account of the development of judicial review. He shows far better than Bickel, not only that the Founders intended the institution, but also that it takes its place within a novel notion of constitutions and constitutionalism which the founding generation worked out in the course of resisting Parliament and then founding new political orders of their own.
The new notion culminates in a familiar idea-the Court as part of a system of mutually checking institutions which supplement and help make effective republican electoral control. The Court checks, but, Agresto emphasizes, it must also be checked in this system of mutual checks. The former is widely granted; the latter, Agresto argues, has frequently been lost to view. The Court's role in this system of constitutional restraint can also be called a tension, as the Court is both checker and checked, because it needs independence and strength to keep other branches within constitutional courses but must not be so autonomous as to escape control itself.
Agresto rejects Bickel's judicial restraint as a response to these tensions because he has both greater fears and greater hopes for the Court than Bickel does. In the face of that experience, Bickel published his book in 1962, after Brown v. Board of Education but before the Warren and Burger Courts hit their stride. From a perspective of twenty years later, Agresto worries about the ever-growing power of judges to "shape public policy on their own authority, unchecked." He no longer accepts the Hamiltonian description of the Court as the "least dangerous branch," a description which Bickel even took as the title of his book. Agresto concludes that the "most striking thing about such self-restraint is its almost inevitable futility." A proper appreciation of the Founders' Constitution points out some of the reasons for that, because "mot self-restraint, not personal or institutional modesty, but interdepartmental checks lay at the core of [their] understanding." To be an integral part of the constitutional scheme, therefore, requires being subject to external, not merely internal checks.
Agresto rejects self-restraint for another, perhaps contradictory, reason. Where self-restraint may not prevent the Court from becoming imperial, it may prevent it from making its positive contribution to American constitutional democracy. "Insofar as the Constitution embodies certain principles of justice and the just life . . . the Constitution necessarily will develop." The Court's task is not merely the relatively easily granted one of applying existing constitutional principle to "new occurrences," but developing "the ideas embodied in the constitutional text," which, like "all ideas," have "the dynamic power of growth." Thus the Court can rightly apply constitutional principles even against the historically ascertained intention of the framers, as, for example, the Court did when it held segregated schools unconstitutional, even though the drafters of the Fourteenth Amendment found them unobjectionable. Agresto rejects Bickel's judicial modesty because the Court's task of creatively deepening the Constitution points toward an active, even assertive Court. For the same reason he rejects other plans for Court curbing favored by critics of contemporary judicial activism.
The solution Agresto prefers depends on a distinction he draws, following Lincoln to some degree, between the legitimate doctrine of judicial review and the illegitimate doctrine of judicial finality. The latter is the basis, he argues, for current tendencies toward judicial supremacy. That doctrine not only arms the Court with the power to expound the Constitution, but claims that power to be authoritatively final and exclusive in the Court. It leads to the logically absurd position, he argues, that the Constitution means only whatever the Court says it does, and the politically absurd position that the Court stands outside and above the entire constitutional structure of mutual checks and balances.
Agresto wishes to save judicial review but curb judicial independence by undermining its chief intellectual prop, the doctrine of judicial finality, which neither the intention of the framers nor the logic of the system nor the positive goods the Court can do, justifies. Just as Lincoln claimed the right after the Dred Scott case to press for a course of national legislation which the Court had declared unconstitutional, so Agresto urges the political branches to reconceive their constitutional roles so that they too join in the great task of constitutional interpretation and stop deferring to the Court as they now do. Congress in particular should exercise its independent constitutional judgment in order to "force reconsideration" of constitutional rulings. This in turn would both supply a check on the Court and, through "creating a dialogue between Congress and the Court," would perhaps produce a closer fit between evolving judgments of principle and democratic rule. He urges Congress to re-pass laws the Court has invalidated, to circumscribe constitutional holdings in an attempt to delimit their effects, and perhaps most radically, he invites Congress to use more fully its relatively unexplored powers under section five of the Fourteenth Amendment.
Some of the finest things in Agresto's book are in the details, like his treatment of the history of judicial review or of the defects in alternative proposals for checking the Court. Nonetheless, I remain convinced that his clear perception of the desirability of a middle way is simply the most valuable feature of this book and an important reminder to those on both left and right of what their enthusiasms might cost.
I mention just a few matters where I have questions or reservations. In more than a few key places, Agresto has left his argument insufficiently well developed for it to be entirely persuasive. For example, he suggests that the doctrine of judicial finality is largely or entirely responsible for what he diagnoses as a drift toward judicial supremacy, but he never makes clear how this is so. More important for moves in this direction seems the shift in judicial function from being essentially checking or "anti-legislative" to being "legislative in the fullest sense: creating categories of expectation and entitlement," etc. Agresto notes this shift, but makes very little of it, and never makes clear its connection to the doctrine of finality. In reckoning the causes of the present place of the Court, the doctrine of judicial finality, as developed by Agresto, looks to be a mere stick of dynamite compared to the hydrogen-bomb impact of the shift toward broad legislative-like power. Agresto rejects the dynamite because his principle of an evolving constitution leads him, sub silentio, to embrace the H-bomb; the growing meaning of constitutional liberty justifies or requires such a turn toward more positive powers.
He develops his solution too briefly as well. How will it work, and what will it look like? We really need a fuller picture than the very thinly limned sketch here. He fails, for example, to discuss the difficult conceptual issues raised by his advocacy of section five of the Fourteenth Amendment, some of which the Court discussed in Katzenbach v. Morgan. He might have looked a bit at the experience of legislative response to the abortion decision and shown if this was the sort of thing he has in mind. Moreover, he omits almost entirely the issue of Supreme Court action vis-a-vis the states. Most of the controversial decisions of the Warren Court related to the states after all, as does most of the current federal judicial involvement in governance.
Finally, the doctrine of constitutional growth stands very near the center of the book, but it too is very lightly developed, and most disappointingly left vague and unsubstantiated. I wish to see a fuller discussion not only of the idea of evolving or developing constitutional ideas, but a more specific discussion of how Agresto sees the substance of these developments. He speaks much of constitutional principles but rather little of what these are. He senses what is truly needed but seems uncertain how to supply it: The reader requires an understanding of the substance of constitutional principle such that he may judge the adequacy of the development the Court, and other agencies of the American polity, give to those principles. Lacking that, Agresto gives us instead a procedural substitute-a brief for the involvement of others in the continuing discussion of constitutional principle. That is valuable but, I suspect, not sufficient.