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.