Opponents of the Leviathan will find no succor in the imagined panacea of nullification.
One of the signal achievements of Bertrand de Jouvenel was establishing the existential status of power: “The Minotaur,” he called it, a metaphysical entity, nearly organic, with an instinct for both survival and expansion.
If Mark Tushnet’s overeager call, predicated on a Hillary Clinton presidency, for judges to emerge from what he alleged to be their “defensive crouch liberal constitutionalism” and slay the foes of Progressivism demonstrated anything, it was that there is, miracle of miracles, such a creature as a judicial Minotaur. Randy Barnett’s much discussed and certainly much warranted reply at The Volokh Conspiracy confirms it.
Yet the judicial Minotaur does not differ from other variants of the all-consuming creature. Judicial power, like other kinds of power, is liable to abuse. Like all kinds, judicial power, having been forged for one hand to brandish, will ultimately be wielded by another. Like all power, judicial power, overly centralized or imposed, saps initiative and induces lassitude.
Tushnet alleged in his defensive-crouch post that liberal jurists and lawyers had been edgily peering over their shoulders for “several generations,” curbing their ambitions lest the right-wing appellate hordes reverse them. Barnett, recognizing the absurdity of the victim talk, notes that President Obama filled the same number of judgeships as President George W. Bush.
Still, Barnett sympathizes with Tushnet’s larger attack on stare decisis, arguing that Tushnet is correct on process, if not on substance, in saying that cases that were “wrong on the day they were decided” should be revisited and reversed.
This call to unleash the Minotaur, especially against precedent, reflects a deeper consensus, one based on a supreme confidence in discrete reason. Both Tushnet and Barnett would expel Edmund Burke’s definition of “the science of jurisprudence”—“the collected reason of ages”—from the Temple of Constitutional Reason.
Such is the essence of judicial supremacy. Barnett prefers judicial “equality,” arguing in Restoring the Lost Constitution (2003) that if courts lacked the power to nullify acts of the political branches, “the legislative and executive branches alone would decide on the constitutionality of their laws. Judges would have to merely take their orders. This would render the judiciary inferior to the other branches rather than their equal.”
This is persuasive as far as it goes, which is to say as long as it goes just as far for the other branches. Do they have merely to take the judiciary’s orders? The question here, in other words, is not whether to place judges in a position of equal authority (more on which presently), but whether to elevate them above a position of equality.
James Madison, whose originalist credentials are generally respected, said a linear conception of the U.S. Constitution under which judges pronounced last in sequence on the permissibility of laws would do precisely that. It would, he wrote, make the judiciary “paramount in fact to the Legislature, which was never intended, and can never be proper.”
Moreover, there is simply no constitutional warrant for the idea that all three branches are equal in the first place. Madison said that in a republic, the legislature “necessarily predominates.” He described the executive authority as fundamentally derivative from the legislative authority.
Alexander Hamilton called the judiciary “incontestably . . . the weakest” of the branches, a description he used to assure the ratifying public that federal judges could never endanger “the general liberty of the people.” That phrase is twice inflected—“general” and “the people”—to indicate a reference to a shared authority of self-governance.
Barnett, by contrast, argues that all three branches of government must concur before a law is imposed. This is the language of those who, for noble reasons, oppose imposition and thus support barriers to it. It sounds entirely reasonable. It is also constitutionally baseless.
The constitutional process of lawmaking, with emphasis on the “making,” gives no role to judges. Madison wanted to give them one—a Council of Revision whose utility, significantly, lay in the fact that Congress could override it—but lost in Philadelphia. Judges provide what Madison called an “auxiliary precaution” after the fact in a fraction of cases.
Article I, rather than making room for a Council of Revision, conveys “all legislative powers herein granted” to Congress. It is true that the “herein granted” qualifies these powers. But the “all”—which, significantly, does not appear in the vesting clauses granting executive authority to the President in Article II or judicial authority to the Supreme Court in Article III—qualifies the authority of the other branches.
What, then, is the attraction to the authority of judges? It is inseparable from the authority of reason characterized by two qualities.
First, this conception of reason is discrete. It is to be exercised by the individual jurist, in individual cases, with individual confidence.
Second, it is instantaneous. It is to be exercised now, and is rooted in the past only insofar as a crease in time connects the individual jurist today with his analysis of the events of 1787 and 1788 or, in the case of the Fourteenth Amendment, 1866 through 1868. Whatever wisdom others have attained about those events or about constitutional meaning in the interim is irrelevant.
As Kevin Walsh noted in this space, Barnett tweeted (link no longer available) that Adam J. White believed in “the judicial supremacy of dead justices.” White replied that while he rejected any judicial supremacy, he did, with Burke, recognize a measure of authority for the dead.
What is illuminating about Barnett’s tweet is that it dips into history only at particular moments: dead justices at the moment they ruled. The notion that dead generations might have something to say to us—much less some authority to impose—is entirely absent. Yet this is precisely what Burke called “the science of jurisprudence.”
Barnett had not, as of this writing, replied to White’s illuminating challenge: Would Barnett support a one-member Supreme Court if he got to pick the justice?
It would disrespect a theorist of Barnett’s standing to speculate on his answer. But it might honor his work to attempt to extrapolate from its premises. They do not seem to recognize the limits of judicial reasoning. But stare decisis does.
The primary function of stare decisis is the necessity of settled and predictable law, but an ancillary benefit is the respect it pays to the views of one’s forebears and the limits of one’s own reason.
Barnett’s method of judicial inquiry bears a close similarity to what Tocqueville called “the philosophical method of the Americans,” who, following Rene Descartes without reading him, “take tradition only as information.” Because, intoxicated with equality, he does not recognize intellectual authority, democratic man “withdraws narrowly into himself and claims to judge the world from there.”
Yet the result of this when bound to judicial power is a striking form of Progressive method. It is a judicial technocracy, a form of scientific legislation applied to legal questions, a judicial government of constitutional experts. Judicial supremacy—or co-equality, which is the same thing in practice—is Croly for constitutionalists.
The problems are the same as those that inhere in legislative technocracy. Even if one takes the substantial leap required to have faith in the technocrats, their authority leads to lassitude in the disempowered citizenry. Even perfectly rational legislation would not be worth the cost in terms of self-government.
It is better to cherish virtue and humanity, by leaving much to free will, even with some loss to the object, than to attempt to make men mere machines and instruments of a political benevolence. The world on the whole will gain by a liberty, without which virtue can not exist.
This, fundamentally, is the problem with the call to abandon “defensive-crouch” constitutionalism, whether of the liberal or the conservative variety. Its latent assumption is that constitutionalism is the exclusive business of judges. Yet judges, too, abuse power—especially, as Brutus noted, when it is absolute. As the narrow miss of Tushnet’s vengeance ought to have warned, power changes hands. It will again, and aggressive use today would help to legitimate its similar use by the other side.
Most important, when judges assume final authority for constitutionalism, the evidence is overwhelming that the constitutional muscle of the other branches, especially that of Congress, atrophies. Congress, bullied by the President, runs to the skirts of judges, suing rather than counterpunching. Even members of Congress have adopted the language of three “co-equal branches of government,” a construction under which, significantly, they must protest that they are one. What is needed is not for liberal or conservative judges to emerge from a defensive crouch, but rather for legislators to emerge from theirs.