Searching for Popular Sovereignty

Judicial Monarchs:  Court Power and the Case for Restoring Popular Sovereignty in the United States might be placed alongside the recent tome by Justice Stephen Breyer, Making Our Democracy Work, each representing a strand of the two major ways of thinking abut the power of judicial review.  Breyer represents what may be called the judicial supremacist view, the view that is most deeply entrenched among the judicial and legal elites.  William Watkins represents what may be called the coordinated powers approach, an older but, since the early twentieth century, less influential approach.

On the Breyer view, the courts, especially the Supreme Court, have the final say on what the law “is,” and can effectively overrule the other two federal branches and indeed the people themselves.  The high-water mark for this view was the plurality opinion in 1992’s Planned Parenthood v. Casey.  Although the issue in that case was the constitutionality of certain restrictions on abortion, the principle of judicial supremacy that case announced extends far beyond that issue alone.  The Court stated that self-government and judicial supremacy are largely one and the same.  Indeed, for the Court the people’s very “belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals.”  In the words of critic Russell Kirk, this position endorses what he called “archonocracy,” rule by judges.

Justice Breyer has characterized the acceptance of judicial supremacy as a “habit” that has developed in the American people, although he finds its inchoate beginnings in decisions like Marbury v. Madison.   This developed habit not only accepts the principle that the Supreme Court must pass on the Constitution’s meaning, but that its interpretation is superior to those of the Congress or the president.  This supremacy must be recognized because only the courts can protect the “rights” it has discerned to exist in the constitutional text; left to the other branches freedom would dissipate under the threat of majoritarian tyranny.  Judicial supremacy is therefore the necessary result of the constitutional design for Breyer even though everyone across the political spectrum can find decisions with which to disagree, and even though there are decisions the Supreme Court itself has disavowed, the infamous 1857 Dred Scott among them.

Despite the historical genealogy Breyer and others have constructed, the widespread acceptance of the Court’s role as final arbiter is of rather recent vintage. Among others, Abraham Lincoln did not think the Supreme Court had the final say on what the Constitution meant, or that it had been entrusted to enunciate constitutional principles “before all others.” In reacting to Dred Scott, Lincoln was clear that although the Supreme Court deserved some deference, as president he too could look at the facts of the case and question the Court’s reasoning.   In his first inaugural, in 1861, Lincoln noted that to bind the other branches of government, based on a decision thought erroneous that arose out of “ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”  In other words, it is not self-evident that one decision by a court, even the Supreme Court, need announce a binding constitutional principle that the other, co-equal branches are bound to obey.  Nor would the judicial supremacist view have satisfied Thomas Jefferson, who wrote in an 1820 letter that:

The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments coequal and co–sovereign within themselves. If the legislature fails to pass laws for a census, for paying the judges and other officers of government, for establishing a militia, for naturalization as prescribed by the Constitution, or if they fail to meet in Congress, the judges cannot issue their mandamus to them; if the President fails to provide the place of a judge, to appoint other civil and military officers, to issue requisite commissions, the judges cannot force him.

On this view, then, judicial supremacy is inconsistent with republican government.  Indeed, it undermines the basic premise of the Constitution that power emanates from the people.  If the Court alone gets to decide the ultimate questions of the Constitution’s meaning, the messy business of politics collapses into the votes of nine (really, five) justices.  Further, the people’s representatives have a convenient, and self-interested, excuse not to fulfill their own constitutional obligations:  let the Court decide!  (Of course, not even the Court really believes in judicial supremacy; the “political questions” doctrine, which permits the Court to sidestep deciding certain issues, remains part of the Supreme Court’s toolbox.)

Watkins rejects the judicial supremacy view, and wants to return the American polity to a more nuanced understanding of what judges should do, and their role in a federal republic.  On his view, all three branches of the federal government are coordinate. That is, they each have a responsibility to interpret the Constitution.  No one branch is superior to the others, although with particular spheres, perhaps, one of the other branches has particular expertise.  The Supreme Court, for example, can say what the law “is,” but it does not have the final say, especially when it is asked to opine on questions far removed from the constitutional text.  The three federal branches share the powers delegated to them in the Constitution.  For Watkins, “judicial independence, to the founding generation, never meant independence from the people.  State and federal judges are not high priests of the constitutional order.  Just like governors, senators, and representatives, judges are mere agents of the people.  When judges begin to make public policy decisions, they rebel against their masters and usurp power.”  We will return to this claim later.

Watkins begins his analysis with an historical overview of the British background to the Constitution, from the Stuarts’ assertion of divine right through the Glorious Revolution to the eve of the Revolution.  Although none of the history is especially new, Watkins highlights several points important for the development of American notions of separation of powers and judicial authority.  Crucially, there was a difference in understanding what sovereignty was.  For the British, sovereignty was in Parliament, or, later, King-in-Parliament.  The colonists early on argued for divided sovereignty, thus preserving their own colonial assemblies as mini-Parliaments, while permitting Parliament to govern in its own sphere of England.  After the Revolution, however, the people rejected the notion of simply replicating parliamentary sovereignty.  In states like Massachusetts, the people reminded their executives through governmental reforms and petitions that power emanates from the people, and that the representatives serve only at their pleasure.  This, according to Watkins, resulted in written constitutions, to preserve popular sovereignty.

What does this have to do with judges?  Well, as Watkins notes, in some colonial states, the judicial function was considered part of the executive, and not a separate branch.  The power to protect rights came not from judges but from the people themselves, who could cashier their representatives through elections.  “Americans knew that power could be abused; however, they did not look to the judiciary to interpose to protect individual rights.  Instead, the people put their trust in juries and institutional safeguards such as bicameralism, delaying veto, term limits, and frequent elections,” not to mention federalism.  Judges served an important, but limited function of ruling on the law.  Although the Marbury decision enshrined judicial review, as Watkins ably explains, this was of a piece with the emerging coordinate view.  The Court, according to Chief Justice Marshall, could rule on constitutional questions, but Marshall did not state that only the Court could decide them.  That it has been so interpreted by later generations of scholars and judges for Watkins represents a grand category mistake.  When combined with the growth of a centralized, rather than truly federal government, judicial supremacy has proceeded unchecked.

Watkins offers some solutions to limit judicial supremacy, such as stripping the Court of jurisdiction to hear certain types of cases, expanding the role of juries (in colonial America, for example, juries decided both the facts and the law), and modifying how federal judges are selected.  Yet is the problem really the Court’s?  Watkins ably diagnoses the growth of judicial power, and its consequences for free government, but that is really only one aspect of the problem.  He leaves out one component:  the judges did not do this to themselves.  Having judges serve as the ultimate authority serves other purposes, including feckless representatives, the media, legal elites in law firms and law schools, and in general those who would prefer a large unitary state rather than a fragmented federal one.  There is no Lincoln these days thundering against Court decisions, and the Congress is more than happy to pass laws and let the Court opine on them later.  There is, in other words, no incentive for anyone to break the “habit” of deference to the Court’s decisions.

The lassitude of these other branches, as much as the vigor of the judicial, is perhaps the more troubling aspect of judicial supremacy.  Only when that changes will some of these other remedial measures Watkins describes become possible.