Posted: August 11, 2004
or anyone who remains unpersuaded that it is now possible to make a scholarly sounding argument for absolutely anything, this book will be the clincher. That does not mean, however, that Mark Kozlowski's volume is without interest.
Readers of this journal are familiar with the withering criticism, more acute every year, directed at the judicial adventurism that has been, since the Warren Court, a growing pathology in American governance. (The most recent outrage is the opinion of Chief Justice Margaret Marshall, for the Supreme Judicial Court of Massachusetts, mandating gay marriage. It is no accident that Marshall's husband, retired New York Times-man Anthony Lewis, provides Kozlowski's book with a fulsome "Foreword.") But despite the sustained intellectual assault on free-form judicial policy-making, its defenders (its constituency, if you will) rarely attempt any serious response. The legal academy, a skilled cheerleading squad for wayward judges, characteristically either ignores the drumbeat of criticism or figuratively rolls its eyes and dismisses the attacks as "incoherent" or based on "unworkable" assumptions. Law professors, after all, regard themselves as the intellectual guardians of the Constitution and the experts at statutory interpretation. They look on the courts as "Cosa Nostra"; why should they dignify with arguments the complaints of outsiders or of a few apostates? Well, Kozlowski has decided to make the arguments, and in so doing demonstrates the wisdom of the law professors in declining to do so. Far better to raise a contemptuous eyebrow than to undertake, as does the quixotic Kozlowski, to argue away the reality of the imperial judiciary.
Kozlowski's first argument is historical: that the Constitution in fact authorizes wide-ranging judicial policy-making, and "courts have been powerful throughout our history." But what he actually succeeds in demonstrating is something no one any longer seriously disputes—that the framers intended the Supreme Court to exercise some power of constitutional review over the acts of congress and of the states. But as understood by the founding generation, including the great John Marshall, this review power was much more modest and bounded than the modern Supreme Court has claimed for itself in such cases as Cooper v. Aaron (1958) or Planned Parenthood of Pennsylvania v. Casey (1992). Both Hamilton inThe Federalist and Marshall in Marbury v. Madison, stressed that the review power was to be exercised only in cases of clear contradiction of the Constitution, and Hamilton recommended impeachment as the proper remedy should federal judges ever substitute their will for disciplined interpretation of the constitutional text. (When representative Tom DeLay sought to revive this idea a few years ago, he was verbally stoned by the contemporary court party.)
Of course a version of what we today call "judicial review" can indeed be discerned in the founding, but freewheeling judicial policy-making surely cannot. And Kozlowski fares even worse with his other historical point. At some highly general level it is certainly true that "courts have been powerful throughout our history," but this is a book concerned primarily with the Supreme Court of the United States and its distinctive product, constitutional law. And no amount of schoolmarm reminders of dramatic acts of judicial review by the Court in the late 19th and early 20th centuries (the income tax decisions, or the striking down of the National Industrial Recovery Act and the Guffy Coal Act) can deflect attention from the vast expansion of the size and scope of constitutional law that took place in the last four decades of the 20th century. This is an elephant in the living room of American governance, and it is fatuous to call it a chihuahua or suggest there is nothing new about it. It was no angry right-winger, but a happy leftist, Texas law professor Lucas Powe, who recently characterized the Warren Court as "revolutionary." Although there were important exercises of judicial power before 1954, there is a point where differences in quantity become differences in kind. Anyone who doubts the expansion of the imperium of constitutional law need only compare the treatment accorded to the subject in law school curricula circa 1955, with the attention devoted to it today.
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Kozlowski understands this, because he seeks to undermine the "myth" of judicial supremacy by arguing that the Supreme Court's expansive rights-making from Earl Warren on was really a good thing. In making this argument not only must Kozlowski implicitly accept the revolutionary character of the Warren Court (which he spends a chapter denying), he must also buy deeply into the thesis that pre-1960s America was a civil liberties hellhole—a thoroughly repressive society with little respect for the rule of law. But however useful the hellhole theory may be in distracting attention from the absence of serious constitutional arguments underpinning the Rights Revolution, it is historically preposterous. With the large exception of the South's atrocious treatment of black people, from the founding on the mainstream of our national life has been characterized by a commitment to individual rights (including rights of property) and to the rule of law hitherto unknown anywhere in the world. What the Warren Court did was to disparage or ignore this achievement, and instead focus on creating new rights for a new republic, and this continues today—for instance, Justice Kennedy's opinion for the Court in Lawrence v. Texas (2003), which created a new right to engage in homosexual relations without state interference. Such innovation does not in any meaningful sense "vindicate" or "secure" existing textually or historically based rights; it invents them de novo without benefit of democratic legitimation.
Kozlowski's next thrust misses the mark just as widely. He attempts what might be called an argument in mitigation for the Rights Revolution, which goes as follows: conservatives object to judicial rights creation because it removes issues of public policy from the democratic process, but in fact the contemporary Supreme Court leaves great latitude for legislative policy making, and when it doesn't, it's the fault of conservatives who have beguiled it with spurious originalist arguments. In support of the first point he offers Planned Parenthood v. Casey, which he maintains left states free to regulate abortion as long as "undue burdens" were not placed on "the right" originally announced in Roe v. Wade. Of course, we found out in Stenberg v. Carhart (2000), striking down Nebraska's ban on partial birth abortions, just how much this increased scope for state regulation was really worth. To establish the second point, that conservatives are really an unprincipled lot, and perfectly willing to limit legislative policy-making when it suits them, Kozlowski launches into an extended discussion of Buckley v. Valeo. Here, he asserts, the country was "deprived" of the kind of campaign finance regulation scheme it really wanted on the basis of the farfetched argument that for the founding generation free speech had something to do with the conduct of elections. So the Court doesn't frustrate the democratic processes—except when it does, but then it's the conservatives' fault.
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Finally, Kozlowski argues that the judiciary is not really imperial because it can always be reigned in. Constitutional amendment, he assures us, is available, and he rattles off Chisholm v. Georgia (reversed by the 11th Amendment), andPollock v. Farmer's Loan and Trust (overturned by the 16th Amendment). But, in fact, examples of reversal by amendment are rare; none has occurred since the 26th Amendment overruled Oregon v. Mitchell (holding that Congress was without power to mandate the 18-year-old vote for the states) in 1971. Amendment (properly) requires not just majority sentiment but overwhelming national consensus. The last three decades of the 20th century are littered with failed amendments aimed at reversing unpopular Supreme Court decisions—school prayer, flag burning, abortion, and so forth. Kozlowski cites what he takes to be the Court's "retreat" from forced busing for racial integration as an example of the Court's altering course in response to popular discontent, and he refers us to the Prison Litigation Reform Act of 1995, which he suggests wiped out two decades of progressive judicial policy-making with respect to American jails. Both points are in some sense true, but they demonstrate far less than Kozlowski believes. Granted, the Supreme Court relented from the imposition of judicial micro-management of school districts, but only after those districts had achieved court-mandated racial quotas and after the horrors of white flight and resegregation had been inflicted on our major metropolitan areas. And the Prison Litigation Reform Act stands as the single example of a successful recent congressional effort to contain judicial adventurism. The larger reality is that none of the major policy innovations that came from the Supreme Court in the '60s and '70s has been reversed; with a slight modulation here or there, the work of the Warren and Berger Courts, so destructive of the fabric of self-government in America, remains intact.
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At some level Kozlowski understands that he is grasping at straws. His concluding chapter, rather disarmingly, comes clean and explains why he holds government by judiciary so dear. On display is deep-seated hostility towards majority rule (always expressed as "excesses of majoritarianism"), and a suspicion of legislatures as institutional creatures pushed around by special interests and unable to attain the level of detachment, rationality, and public-spiritedness that he finds in courts. The imperial judiciary, we discover, is not a myth, but a reality to be celebrated.
In perhaps the most telling passage in the book, Kozlowski proclaims:
To my knowledge, no one has suggested a feasible way for a democratic polity to ensure the possibility that minority and individual interests will be protected from majority excess—I am positive no one knows how to ensure the certainty that they will be protected—other than through mechanisms that resemble judicial review and the tempering of laws by the application of equity.
But of course someone has suggested an alternative; Kozlowski has just forgotten it. In The Federalist James Madison addresses precisely Kozlowski's concern and gives a different answer:
There are but two methods of providing against this evil [majority tyranny]: the one by creating a will in the community independent of the majority, that is, of society itself; the other by comprehending in the society so many separate descriptions of citizens, as will render an unjust combination of a majority of the whole, very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This at best is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests, of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent upon the society, the society itself will be broken into so many parts, interests and classes of citizens, that the rights of individuals who are of the minority, will be in little danger from interested combinations of the majority.
Kozlowski, and the court party in contemporary America, have altogether lost faith in the framers' system of structural protections for individual and minority rights, and have opted for an aristocracy of the robe, "separate from society." This, rather than folderol over whether the policy-making power of the judiciary has increased, is what we should be talking about. Do we really believe that the Constitution—with decentralized republican government, federalism, separation of powers, and policy-making through representative institutions—is no longer adequate to provide decent governance for Americans? There are respectable arguments to be made for aristocracy, and supporters of the expanded judicial imperium should get about making them (indeed, a few have). What is inescapable, however, is that such arguments, whatever their theoretical merit, cannot be reconciled with the principles of republican self-government that are the historical core of the American constitutional order.