Arise, Ye Prisoners of Scalia

The particular danger of conservatives’ turning to the courts to pursue preferred outcomes, even constitutional ones, is that doing so legitimizes the same strategy by constitutional liberals, who will—it bears repetition—sooner or later reassume control of the levers of judicial power. The time for warnings may soon give way to a season of regret: The liberal judicial ascendance is begun.

Harvard Law Professor Mark Tushnet, noting that a majority of appellate judges are now Democratic appointees, observes as much at the Balkinization legal site. He urges liberals to rise up out of the “defensive crouch” in which they have been stooped for “generations” of conservative domination of the courts. The method by which he tabulates these “generations” is obscure, but the question his call raises is clear: On what grounds, precisely, is he wrong?

Robert Bork could have answered without difficulty. Tushnet—who advises that liberals strike a posture of triumphalism in the culture wars, reject precedent, and engage in aggressive activism—proposes a democratically illegitimate use of the courts. That is, the courts would be wrong to do these things even if they could make a case for them because such matters are better and more legitimately decided by the people through republican—that is, representative—processes.

Conservative and libertarian advocates of judicial engagement, by contrast, could argue with Tushnet about the law—no small thing, of course—but, having urged full exploitation of the courts, not about the question of institutional legitimacy.

Yet it is strange to exempt the courts from the question of legitimacy that those generally suspicious of power—libertarians prominent among them—would naturally ask of other branches of government. For every other branch, we set, or claim to, norms of institutional legitimacy (marking out what they may or may not do regardless of whether they have the capacity or prudential justification for doing them) and we look to the levers of institutional power that can maintain those norms.

Respect for these limits, and the policing of them by the other two branches, makes presidential and congressional actions exercises of legitimate authority rather than of raw power.

But what of the High Court? For Bork, its legitimacy arose from its respect for constitutional intent, including the Framers’ intent that the American people be able to govern themselves through republican processes. For the judicial-engagement set, however, there is no principled limit that can or should be placed on the judiciary’s power other than what the law dictates.

This sounds innocent, even admirable, enough. But since the same view also makes the judiciary the interpreter of law, the courts end up enthroned as arbiters of their own power. The equivalent would be to say that Congress’ authority is limited only by the legislature’s interpretation of the enumerated powers, or that the President’s is confined only by his or her view of the Vesting Clause. In this case, the judiciary’s power runs as far as the law’s conclusions—as understood by the judiciary—extend.

Tushnet concurs and proposes thusly:

First, he would like to see “a jurisprudence of ‘wrong the day it was decided,” which is to say a liberal disposition to overrule all past cases with which liberals disagree. His list: Bakke, Buckley, Casey, and Shelby County. Of these, Shelby County might be fresh enough reasonably to be considered unsettled. Casey is dumb enough permanently to be considered unsettled, though not in the way Tushnet supposes. So this is about more than the typical wish of undoing Citizens United; the reversed wave will wash over Buckley, too. Meanwhile Casey, which saved Roe, is now said to have too severely limited it.

Second, Tushnet declares: “The culture wars are over; they lost, we won. . . . For liberals, the question now is how to deal with the losers in the culture wars.” His recommendation: harshly, to the point of analogizing the situation to dealing with Germany or Japan after their defeat in World War II.

Third, exploit ambiguities and loopholes in precedents not worth overturning.

Fourth, use doctrine “to empower our allies and weaken theirs”: that is, “understand” that jurisprudence on topics like campaign finance and voting rights alters electoral balances of power.

Fifth, use aggressively rather than cautiously liberal justices as models.

Finally, and this is Tushnet’s locution, “fuck Anthony Kennedy,” to the sweet mysteries of whose jurisprudence liberals need no longer kowtow. So Kennedy, maker of liberal majorities in decisive cases, having been used, may now, in the image of the great Brazilian writer Machado de Assis, be “tossed aside like a sucked orange.”

To be sure, while most conservatives are hardly more enamored of  Kennedy, there is much in this manifesto that veers between the abusive, the offensive, and the simply juvenile: the obligatory Leftwing conjuring of the Nazis when discussing American conservatism; the explicit suggestion that judges should be political consequentialists. None of this kind of nonsense could be hung on principled and thoughtful advocates of judicial engagement like Randy Barnett (whose new book on the topic, Our Republican Constitution, is outstanding), Roger Pilon, or others.

Still again, there seems to be common ground with Tushnet if one follows their reasoning to its logical conclusion. They lack the means to prove Tushnet is institutionally wrong for turning to the courts for the results he seeks; the best they could argue would be to say that he seeks the wrong results.

This is especially true with respect to the culture wars. The ardor of Tushnet’s triumphalism seems premature at best, but accepting it arguendo, the judicial-engagement complaint might (might) be that the wrong side won. But that would be to accept the legitimacy of judicial contest as a means of determining the outcome in the first place.

Bork’s objection, by contrast, would be that the war was fought on the wrong front. The best case for excluding the courts from the culture wars is institutional. They are well situated to declare winners and losers that aggravate the conflicts’ tensions, but ill-equipped to forge and evaluate the balances and tradeoffs that lower the battles’ stakes. The courts do not provide republican representation. They lack expertise in the underlying issues.

It is true, of course, that advocates of judicial engagement can answer the Left flank with legal reasoning, and that their legal reasoning is sharp, incisive, and certainly superior to what the disciples of Brennan and Marshall propose. But as Tushnet shows, this is the very definition of a parchment barrier: the equivalent of giving the presidency and Congress, for example, no checks on one another save persuasion. Madison considered such an approach to the separation of powers, one in which each branch would be merely cajoled to swim in its own lane. He rejected it. So do the libertarians, at least with respect to the presidency and Congress. It is precisely because they reject such charitable readings of authority for the political branches that they advocate judicial engagement to constrain them. The problem is their resistance to comparable constraints on the judiciary.

By contrast, a Madisonian riposte to Tushnet’s activism would be for the other branches, backed by a restored republican morality among the people, to stop according the Supreme Court both mystical powers and the sacred deference that attends them. There is ample evidence that that body’s ambition reaches as far as the frontier of its options. Those frontiers, having been opened by unblinking deference, need to be rolled back. Impeachment is probably too bold a hope; a more aggressive use of jurisdiction-stripping and other measures is not.

But political restraints on the judiciary are less available in the hour of need because they were spurned in the hour of opportunity. The irony is that, by intending to narrow the strike zone for the political branches, which can be restrained by accessible political mechanisms, constitutional libertarians have widened it for the one branch on which they would place no controls. It is difficult to see how a Left-leaning judiciary, perhaps soon to be crowned by a Supreme Court with a fifth liberal, can be confined except by methods that many advocates of judicial engagement have placed out of ideological bounds.

Reader Discussion

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on May 19, 2016 at 10:34:55 am

This country was far better off when the overwhelming preponderance of the population COULD NOT name a single Supreme Court Justice. We have elevated them to the status of secular saints and they appear to revel in the attention. And like their predecessor Black Robes, the Jesuits, their "mission" is boundless and pursued with the same fervor as their proselytizing predecessors.

As for *engagement*, the charge has merit. It too may soon take us off the rails. However, on some other blogs, I have seen a concession made to the engagement argument that would more closely resemble Phillip Hamburger's conception of "judicial duty." If that be the case, then I am all for it: i.e., duty as defined by an adherence to the Constitution and the recognition of the limits of judicial action under a republican form of government.

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on May 19, 2016 at 10:35:00 am

There is a difference between “legislating from the bench” and judicial engagement. Legislating from the bench as Professor Tushnet seems to be describing, from what you have said about his views, looks to the policy outcome. Whatever policy outcome is best is what the judge should decide, that is “legislating from the bench.” Judicial engagement on the other hand claims the role of judges is to enforce the constitution as they interpret it, regardless of what the elected branches believe it to be. It is not based on the best policy outcome, but only what the judge truly believes the constitution means. It can sometimes be hard to tell if the judge is really doing a “good faith” effort to interpret the constitution or if they actually predetermining what the outcome should be on a policy level and then justifying that after the fact. But that is the difference between right and wrong actions by judges as far as judicial engagement is concerned. Judicial restraint merely imposes a slightly higher bar for judges to be “sure” they are right before they reject the elected branches.

Now none of these (judicial engagement or judicial restraint) really impose any hard constraints on judges that want to get around them and are willing to lie. To a judge that wants to rule based on policy considerations and is willing to lie, they will just claim that they are absolutely convinced that whatever their policy outcome based interpretation is the right one based on original meaning or whatever other interpretive scheme is most in vogue.

The only truly hard constraints on judges are the ones implicit in their power or explicit in the text of the constitution. The explicit limits in the text of the constitution are (1) for what the legislature believes is a bad faith interpretation of the constitution: impeachment for violating their oath of office, (2) a constitution amendment to make explicit previously vague areas of the constitution, or (3) an exception to the appellate jurisdiction of the Supreme Court. The last implicit safeguard against a truly out of control Supreme Court (a court which was ignoring the explicit safeguards against their own power) is to just ignore their opinions, they have neither the sword nor the purse to enforce them.

If the people really thought that Roe v. Wade was interpreted correctly, but that it is not what they really wanted, they could pass a constitution amendment to overturn the Supreme Court. If Congress and the president decides that the Supreme Court interpreted Roe v. Wade incorrectly (but in a good faith manner so impeachment isn’t an option), it could by a simple majority signed by the President remove all appellate jurisdiction of the Supreme Court in cases of abortion (or even the jurisdiction of all the federal courts and return it to the state Supreme Courts to decide). This wouldn’t change the true meaning of the constitution, but would change who the people deciding it would be (still never ultimately congress, but another court or a state supreme court). Lastly if the court ignores the fact that they have been impeached or that their jurisdiction has been removed, they executive and legislative branches can just ignore the court’s opinions.

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Devin Watkins
on May 19, 2016 at 10:40:06 am


Would you characterize the "correct" judicial posture as "judicial duty" (see Hamburger and others)? It would appear that you would be leaning that way.

Also, I forget the case cite, but did not the Congress during the Bush II administration specifically remove SCOTUS jurisdiction on an "enemy combatant" case AND the Black Robes simply went ahead and decided the case anyway.
It seems the court in its arrogance is the one doing the ignoring.

But, wouldn't it be nice if the congress were to do as you say and simply ignore our secular Black Robed saints.

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Image of gabe
on May 19, 2016 at 10:57:11 am

Thanks for the thoughtful reply. I don't think Tushnet is describing legislating from the bench insofar as he believes the Constitution dictates, for example, the outcome in Roe just as sincerely as those on the opposite side believe it dictates the outcome in, for example, Lochner. He is describing a Court judging its own constitutional power without external constraint. I have no problem, or at least vastly less of a problem, with judicial engagement that also acknowledges external constraints on the Court consistent with the separation of powers. The problem is when the "independent" judiciary becomes the one branch of government exempted from the checks to which other branches are routinely subjected.

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Greg Weiner
on May 19, 2016 at 11:02:19 am

Greg, great post. We are indeed peering into the abyss.

Tushnet makes the best argument possible for #NeverHillary.

Get well soon.

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Mark Pulliam
on May 19, 2016 at 11:07:37 am

Yes, to me, it is the duty of the Supreme Court to say what the law is as they interpret it regardless of what the elected branches think the proper interpretation is. (I reject judicial restraint compared to judicial engagement.) The Supreme Court is a co-equal branch, it has as much authority to decide the meaning of the constitution for its branch of government as the other branches do for theirs. Now if they truly don't know the answer, maybe they can back off (but they have a duty to do everything they can to answer the question), but if they believe the interpretation to be one way, and the elected branches believe another way, I say the judges should stay true to their own beliefs as to the meaning of the constitution.

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Devin Watkins
on May 19, 2016 at 11:11:15 am

Well now that we can agree with, but I don't know any proponents of judicial engagement who say there are no checks on the courts powers (I'm fairly close friends with Evan Bernick one of the major proponents of the idea of judicial engagement at the Institute for Justice and I don't think he would agree with that notion). Can you tell me who you think believes this? (Otherwise it seems somewhat of a strawman)

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Devin Watkins
on May 19, 2016 at 11:13:15 am

As to Tushnet, if he isnt just suggesting judges rule based on policy outcomes but based on what he really believes the constitution means, then the proper remedy for the elected branches if the courts followed Tushnet and the elected branches disagreed, is to strip the court of its jurisdiction (an explicit power of congress in the text of the constitution).

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Devin Watkins
on May 19, 2016 at 11:29:38 am

Sorry missed the second party of your post. What you are talking about is Hamdan v. Rumsfeld, and the court tries to address why they think the jurisdiction stripping statute did not apply look at Part II, congress had been put on notice that if they wish to strip the jurisdiction of the court as to pending case (and not just going forward), then it has to explicitly mention that. The most explicit form of jurisdiction stripping was in Ex parte McCardle, which actually occurred after oral arguments in the Supreme Court.

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Devin Watkins
on May 19, 2016 at 11:49:20 am


"Tushnet makes the best argument possible for #NeverHillary."


Time for folks to get off their high horses, take off their shiny armor, bite the bullet and replace thier "NeverTrump bumper stickers with "Never The Fat Lady in a Pantsuit."

And when Tushnet proclaims that they "have won the culture war" - who do you suppose was one of the chief warriors. Why, none other than the aforementioned Fat Lady.

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Image of gabe
on May 19, 2016 at 18:43:10 pm

I scanned through Tushnet's article. Nice to see an astute professor from such an honored institution quoting Wikipedia as authoritative.
"The culture wars are over; they lost, we won. Remember, they were the ones who characterized constitutional disputes as culture wars (see Justice Scalia in Romer v. Evans, and the Wikipedia entry for culture wars, which describes conservative activists, not liberals, using the term.)"

What a wonderful example for legal students everywhere. Hope some of his Harvard students go to court with material like that.

To me it looks like Tushnet is practicing classic negotiation strategy. His strategy is made obvious by how extreme his position is.

I have a whole loaf of bread. You want some of it. You argue that you should have all the loaf. If I should negotiate with you, and we agree to a compromise, I give you half the loaf.

In the end, you get what you wanted. But I lose half my loaf. If I'm unwise I just scratch my wooden head and tell myself that half a loaf is better than none.

The way you address this kind of crap is by publicly calling out the opponent's strategy and saying you aren't going to play that game. If you fight them on their terms, you lose.

Only, it's not bread we're talking about here. It's rights. Tushnet is asking, what rights are you willing to negotiate away here?

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Scott Amorian
on May 19, 2016 at 22:44:01 pm

To sing again this Psalm:

Once a legal system has become perverted to, and is used as, a means to attain ends, all who function within it become adapted - Judges, Lawyers (practitioners ), Academics, and others.

When we have the repeated examples of cases where the EPA is "sued" by some group for not doing what EPA functionaries want to do anyway, and there is an adjudicated "settlement" that "requires the EPA to do what it might otherwise not find authority to do - the perversions to attain objectives of administrative governance increase.

There are many more forms of perversions.

It is the system, apparently wildly desired by the "public' (or at least "sold" to them), which forms the patterns of actions by its human functionaries. The "problem" is NOT the functionaries; it's the system.

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R Richard Schweitzer
on May 21, 2016 at 13:16:42 pm


I will *take* the "sold" part of the equation in that "sold' allows for the possibility that the functionaries are clearly also acting upon their own motivations. I grant you that the "sales job" may have been so effective as to lead one to believe that the public desires it (indeed, they probably do, the poor sops) yet there is still the underlying aspirational desire / actions of the functionaries to enhance their own positions / power and influence.

And thus the question of: "What happens to all those failed candidates for High School Class President? - they end up working for the FAS - hey, at least they now get paid for their silly ideas.

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on May 22, 2016 at 16:06:46 pm


I have written a reply and it will be published soon. By way of a preview: It's important to understand that Tushnet is one of the pioneers of the Critical Legal Studies movement, which holds that the Constitution doesn't have a fixed, determinable meaning and that it embodies whatever values we bring to it--thus, law is politics by another means. So, he doesn't really think that any decision is really consistent or inconsistent with the true meaning of the Constitution--there is no such meaning. He's written in favor of abolishing judicial review in order that politics may be left to the political branches. His proposal is an intermediate step in that direction--he wants to undermine decisions that have placed fixed limits on government power because he thinks progressive will win through the political process. So his proposal presents a different problem than that which would presented by a progressive who believes that the courts ideally should be consistently imposing progressive values upon the rest of us, based on a sincere belief that the Constitution embodies those values. He has no such belief--ideally, he'd have the Constitution taken away from the courts altogether.

But judicial engagement proponents do need an answer to those who would urge the courts to impose progressive values on the rest of us. There's much more to be said than one article can capture, and I may follow my initial post up with further thoughts. Structurally, the primary safeguards against judges who see law as politics by another means are the appointment process itself--you don't nominate them and you don't confirm such people if they're nominated--and the remedy of impeachment, which can and should be broad to bear on willful judges. A judge who took the view of the law that Tushnet does should not be appointed; if he or she does somehow come to hold office, he or she should be impeached if he or she puts theory into practice. In certain cases, executive non-enforcement of court judgments may be appropriate--although I'd submit that this remedy ought to only be exercised in cases where the executive has a high degree of confidence that constitutional error has been committed. I do, however, believe that jurisdiction-stripping is taken off the table by the vesting of "The judicial Power" in "one Supreme Court." That power is complete, it encompasses "all cases... arising under this Constitution," and Congress has no power to make any exceptions to it. While the Constitution leaves Congress with the option of creating or not creating lower federal courts, the Supreme Court must have the final judicial word in all cases that arise under the Constitution.

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Evan Bernick
on May 22, 2016 at 17:31:20 pm

(To anticipate an objection: the Exceptions Clause does not authorize Congress to remove cases from the Supreme Court's jurisdiction altogether--together with the Necessary and Proper Clause, it allows Congress to make an exception to the Supreme Court's appellate jurisdiction by instead granting it original jurisdiction (thus allowing Congress to move cases back and forth from appellate to original jurisdiction). McCardle did not hold otherwise. The 1867 divestment statute did not apply in McCardle because the facts had arisen after the cutoff date of that statute. The statute applied in McCardle determined which court or courts could consider certain lands of cases; it did not attempt to divest a subject matter category of jurisdiction entirely from the judiciary as a whole.)

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Evan Bernick
on May 23, 2016 at 10:36:43 am


And yet, there are some who argue that Congress CANNOT increase the Court's original jurisdiction (Alexander Hamilton for one) and / or that such action requires a constitutional Amendment (see 11th Amendment for a diminishment).

If only it were so that Congress could increase *original* jurisdiction. Just imagine the fun we could have if, in response to a questionable judicial determination by SCOTUS, say "enemy combatants" or illegal immigration", the Congress were to mandate that SCOTUS have original jurisdiction on EVERY immigration case arising in the land.

Perhaps, that might get their attention.

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on May 27, 2016 at 21:15:03 pm

[…] those officials seek to deprive private citizens of what is rightfully theirs? Over the course of several exchanges, it has become apparent that Professor Greg Weiner and I answer that question very […]

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Image of The Menace of Arbitrary Power and the Duty of Judicial Engagement: A Further Reply to Greg Weiner | Chicago Black Pride
The Menace of Arbitrary Power and the Duty of Judicial Engagement: A Further Reply to Greg Weiner | Chicago Black Pride

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.