Professor Mark Tushnet is nothing if not candid. In a series of posts written for the Balkinization legal site, Tushnet exhorts his fellow Progressives to look around, recognize that a majority of appellate judges are now Democratic appointees, and abandon “defensive crouch liberalism.” Instead of “looking over their shoulders for retaliation by conservatives,” Tushnet proposes (among other things) that Progressives compile lists of Supreme Court cases “to be overruled at the first opportunity” on the grounds that they were “wrong the day they were decided,” and take a “hard-line approach” with conservatives in the culture wars.
In an earnest and thoughtful article, Professor Greg Weiner argues that this agenda presents a challenge to conservatives and libertarians who advocate judicial engagement—genuinely impartial, evidence-based judicial inquiry into the constitutionality of the government’s true ends and means, without deference to the government, in every constitutional case. Weiner contends that engagement advocates “could argue with Tushnet about the law” but “not about the question of institutional legitimacy” because they have themselves “urged full exploitation of the courts.” He charges that engagement advocates have “enthroned [courts] as arbiters of their own power” by allowing that power to “run as far as the law’s conclusions—as understood by the judiciary—extend.”
I always enjoy a challenge. But Tushnet’s action items present a different one than Weiner seems to think. For Tushnet is proposing ways to tactically disarm the judiciary: he wants not fewer, but more contested questions regarding the use of government power to be resolved through the political process, because he is confident that Progressives will be victorious in that arena.
It is conservative advocates of judicial restraint—who urge that judges presume the legitimacy of the political branches’ assertions of power, and urge that judges only invalidate those assertions when they are clearly unconstitutional—who should regard Tushnet’s ideas as an occasion to check their premises. In contrast, judicial engagement advocates can address Tushnet by highlighting the constitutional illegitimacy of his approach to constitutional decision-making and the capacity of judicial engagement to equip judges to enforce the Constitution’s limits on government power.
In order to properly understand what Tushnet proposes, it is necessary to understand his body of scholarship. He is among the pioneers of the Critical Legal Studies movement, whose members argued that the notion of a fixed, determinable rule of law is a myth. CLS scholars argued that the law is pervasively indeterminate and that competent judges can and do shape available legal materials in the image of their own idiosyncratic values.
The shocking last words of Tushnet’s most influential work, Red, White and Blue: A Critical Analysis of Constitutional Law (1988), in which he critiques prevailing modes of constitutional interpretation, sums up his view regarding the possibility of truly objective judicial review: “Critique is all there is.” More recently, Tushnet has argued that judicial review should be abolished altogether in order to reinvigorate democracy.
It is no surprise, then, that the decisions he suggested should be overruled as “wrong the day they were decided” are generally objectionable to him because they impose fixed limits on government power. They include University of California Regents v. Bakke (“for rejecting all the rationales for affirmative action that really matter”); Buckley v. Valeo (“for ruling out the possibility that legislatures could develop reasonable campaign finance rules promoting small-r republicanism”); and Shelby County v. Holder (which invalidated the coverage formula of the Voting Rights Act).
As I indicated, overruling these decisions would allow more contested questions concerning government power to be resolved through the political process. Thus, in a subsequent post that identified District of Columbia v. Heller and Citizens United v. FEC as potential candidates for overruling, Tushnet wrote that the overrulings would be “legislature-empowering.”
Tushnet’s ideas put conservative proponents of judicial restraint like Weiner in a difficult position. Weiner can insist that Tushnet is wrong about the above-mentioned decisions—that the Constitution does in fact forbid the assertions of government power that the Court invalidated. But he does not want to make this argument—the core of his criticism of judicial engagement is that it places no limits on judicial power “other than what the law dictates.” But Weiner’s argument that Tushnet’s approach is “democratically illegitimate” because it allows judges to decide “matters [that] are better and more legitimately decided by the people” misses the mark. Tushnet’s approach is tailored to—to borrow the title of one of his books—take the Constitution away from the courts, for the sake of Progressivism.
And in this, Tushnet is on to something. The experience of the last few decades has shown that when judges allow officials in the executive and legislative branches to act as the constitutional arbiters of the scope of their own powers, constitutionally unconstrained government follows. Judicial doctrines—in particular, the so-called “rational-basis test,” which serves as the default standard of review in constitutional cases—that require reflexive judicial deference to the political branches have facilitated (among other things) the bulldozing of entire working-class neighborhoods for “economic development,” the destruction of livelihoods for patently protectionist purposes and the consolidation of executive, legislative and judicial power—an arrangement that James Madison described as the definition of tyranny—in federal agencies that are not accountable to ordinary citizens in any meaningful sense.
It is no coincidence that “judicial restraint” was first championed by Progressives who sought to micromanage economic and social life in ways that the Constitution did not authorize.
Tushnet discloses the pressing need for supporters of constitutionally limited government to articulate an understanding of law and judicial duty that would paint as illegitimate the reduction of constitutional decision-making to politics by another means, as well as to set forth a principled framework for constitutional decision-making that can equip judges to enforce constitutional limits on government power.
As Justice Clarence Thomas has explained, Article III’s authorization of “the judicial power” incorporates a duty of independent judgment—a duty to decide cases in accordance “with the law of the land, not in accordance with pressures placed upon [judges] through either internal or external sources.” By ensuring that judges are relatively insulated from majoritarian pressures, the Constitution gives judges the space that they need to perform their duty. But if judges do not believe that they have such a duty in the first place or they do not have a framework for decision-making that equips them to discharge it, they cannot be expected to enforce the Constitution.
Indeed proponents of judicial engagement do have ready responses to Tushnet.
First, his agenda rests on false premises about constitutional decision-making. Objective judicial review is possible. “This Constitution” has a fixed, determinable meaning, and judges can ascertain its communicative content through disciplined, logic-guided, context-sensitive inquiry. Judges are capable of exercising independent judgment rather than merely deciding cases in accordance with their own will, the will of public officials, or the will of the crowd. To the extent that they use their office as a means of imposing their will, or abdicate their responsibility to decide cases without deference to the will of others, they violate Article III.
Second, judicial engagement equips judges to enforce the Constitution by focusing judges’ attention on whether the political branches’ actions are calculated to achieve a constitutionally proper end of government. Those who are concerned that the Supreme Court will overrule Heller or Citizens United are concerned that majoritarian politics will offer little security for the right to keep and bear arms or the right to spend money on political speech. Judicial engagement, by requiring government officials to affirmatively demonstrate, with credible evidence, that they are pursuing a constitutionally proper end through means calculated to achieve that end in every case, can and does offer security for these rights. For examples, see Heller and Citizens United.
No framework for constitutional decision-making can guarantee that judges will not betray the people’s trust. Advocates of judicial engagement can, however, explain why no one who views law as politics by other means should hold judicial office. They can further explain that judges, no less than other government officials, are agents of “We the People”; that they are duty-bound to follow constitutional instructions in good faith; and that the egregious disregard of judicial duty can be the proper subject of impeachment proceedings.
Finally, they can set forth a framework for decision-making that equips judges to perform their duty and that can be used to evaluate whether or not they have done so. Advocates of judicial restraint can offer only the hope that we will be visited by angels, in the form of legislators and bureaucrats, who happen to be firmly committed to constitutionally limited government. Experience has shown that this is a hollow hope indeed.