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Does Judicial Engagement Empower Progressives? Answering Professor Weiner’s Challenge

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.

Reader Discussion

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on May 24, 2016 at 09:43:14 am

Dr. Bernick,
You have written a pivotal statement of the problem but no hope for solution. I am reminded of and mimic the CSA declaration of secession: conservative lawyers invested a great political error with the sanction of more erroneous constitutional belief.

I would like to collaborate by offering hope. First let me selectively quote the section of your great post I want to address:

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.

We suggest that "We the People" is itself a hollow hope, because it represents a totality that neither trusts nor commits to the literal preamble to the constitution for the USA. We dub the entity that collaborates to use the preamble's goals a civic people (ACP), in the United States, ACPUS. Members live civic lives in an overarching culture of real-no-harm (RNH) private liberty with civic morality (PLwCM) and its corollary private morality with civic liberty (PMwCL). Majoritarian politics must be directed by ACP through private voting. Our stated goal was just revised from 70% citizen participation as ACP to 65%, based on representation of the people when willing delegates signed the draft constitution on September 17, 1787. The only critically durable sentence in the document is the preamble, yet each member of ACP should mimic it for her or his private use in 2016.

The fact that the 1787 constitution was a matter of opinion is born out by 1) the provision for amendment and 2) its failures subsequently amended. However, opinion is insufficient, as born out by opinions about Bible verses that seem to advocate slavery. The physics of slavery—chains, whips, guns, brutality and burdens to slave masters—inform humankind that slavery is a civic immorality regardless of any religious moralities. Slavery affords an illustration that the rule of law must be based on physics rather than opinion.

Some 3000 years of classical liberal writing, wherein debates are often centered on science vs religion for determining civic morality show that science, a study practice, is also insufficient. Our collaboration for a theory of ACP was advanced by Kate Gladstone’s phrase “the facts of reality,” which we use to express the importance of physics discoveries. See the post, “Theory of a civic people” at our web address.

Physics-based morality, as ACPUS, Baton Rouge, uses that phrase, presents hope for judicial restraint and a shield against either tradition or modern democracy in reforming the rule of law.

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Phil Beaver
on May 24, 2016 at 09:45:52 am

Whoops: I miss used the attribute

. The section starting "We suggest that 'We the People' is itself a hollow hope . . . " is original to this post.

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Phil Beaver
on May 24, 2016 at 10:40:43 am

Evan:

Spot-on!

I suspect that you are quite right about Tushnet. He does seek to disempower the Judiciary as he believes (not w/o some basis in fact, BTW) that the Progressives hold sway over the political / rhetorical landscape. Let our DEMOCRAT (or left-friendly GOP) Legislatures advance us to the Promised Land would seem to be his rallying cry.

It was nice to see a somewhat clearer equivalence asserted between judicial engagement and judicial duty. With this formulation, it should be clear to all that the advocates of judicial engagement recognize, and are, bound by certain limits to their interpretations / determinations of the US Constitution. At first reading, and perhaps due to some *lazy* reading on my part, I also suspected that the "engagement" types would / could also use this to deploy their own agendas. Engagement cabined by *duty*, as evidenced by a long l;ine of now forgotten British jurists who sought to limit the power of the Crown, will not produce the type of *activism* about which Weiner is properly critical.

Yet, as you say, there is no constitutional mechanism (crystal ball, perhaps?) that will forestall the possibility of even an *engaged* jurist from "growing", as they say, in office.

The following essay appears to be an attempt to provide some biographical / ideological background on the Trump SCOTUS potential nominees. Interesting!
I wonder: would anyone recall what was said about Chief Justice Roberts prior to his ascendancy to the Chief's slot?

No, it would seem that whatever traits, dispositions and previous decisions are insufficient to determine how a judge on SCOTUS will perform. One wonders if, however, there is an effective means of determining whether one will do his / her duty? It is all I would ask - nothing more.

In any event, thanks for the rather clarifying essay.

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gabe
on May 24, 2016 at 11:24:24 am

Oops, left out a thought:

And while those same British jurists did an admirable job limiting the Power / Prerogative(s) of the Crown, like their American successors they failed abysmally in limiting the Power of the Crown-in-Parliament. Indeed, Blackstone is reported to have asserted that there is no power under Heaven that can limit the Parliament.

It would seem as if Professor Tushnet is following a historical precedent and advocating Blackstone's (no friend of the American colonies) position. Or put another way, the American Judiciary is following their British antecedents in renouncing their duty and incorporating themselves into the political arena.

"Touche" - or is it Tushnet to that!

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gabe
on May 24, 2016 at 11:54:51 am

Along with Blackstone comes theism, with then the king's factional Protestant trinity. The signers of the draft constitution for the USA tried to separate from that, but alas the first Congress restored legislative prayer to factional (so called sectarian) Protestant gods. Then, 99 % of free-citizens were factional Protestants and only 6% could vote, so restoration of Blackstone was not a problem. Today, 100% of non-criminals can vote and traditional factional Protestantism has fallen to 14% with Methodists the largest faction of the factions at 27 or 3.8% of citizens.

After 227 years evidence that neither adapted Blackstone nor theism offers civic morality, it is past time for reform. Physics, which is mass, energy and space-time can be discovered, comprehended and understood by at least 65% of the people, and the fact that collaboration for a better future is published offers hope whether this esteemed forum catches on or not.

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Phil Beaver
on May 24, 2016 at 11:56:21 am

sorry. That's 27%.

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Phil Beaver
on May 24, 2016 at 12:13:40 pm

Everybody:

Heeeess BAAAAAACKKKKKK! as the TV screen goes to static!

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gabe
on May 24, 2016 at 13:33:12 pm

We can always count on gabe for propriety as he sees it: outside a civic people.

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Phil Beaver
on May 24, 2016 at 17:49:25 pm

Civic, you say.

I am convinced that your usual "one-trick pony" comments above may have deterred others from commenting on Mr. Bernick's excellent essay.

Can you please cease and desist with this civic collaboration nonsense.
You RUIN any hope of solid, interesting threads.

OMG - it is back to sniffing paint fumes for me, again. At least then I can explain the rather dizzing feeling I get - unlike here after your posts.

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gabe
on May 24, 2016 at 18:28:22 pm

gabe, what's that old saying: If you can't stand the kitchen go out back and peel potatoes?

I am of We the People of the United States as defined in the preamble to the constitution for the USA. I work constantly for civic life with civic justice. The fact that I care and work for justice makes me one of the most important persons in this country.

You, with your whining and fruitless attacks on my person have no standing. Go peel potatoes or do something useful.

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Phil Beaver
on May 24, 2016 at 20:33:18 pm

" makes me one of the most important persons in this country."

You are indeed a Legend in your own Mind and in your local asylum.

As my former drill sergeant used to tell me: "Sierra Tango Foxtrot Uniform."

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gabe
on May 24, 2016 at 21:17:21 pm

so now you wallow in your gutter, gabe, as though this world is not armed with urban dictionaries that disclose your f___ U. You are an embarrassment to this blog and easy prey for physics.

Phil Beaver has nothing to do with your denial and misery. It's you and your fear of physics--the facts of reality (thank you Kate Gladstone for that phrase).

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Phil Beaver
on May 24, 2016 at 21:19:08 pm

Here's that urban dictionary entry: http://www.urbandictionary.com/define.php?term=stfu from http://www.urbandictionary.com/define.php?term=sierra%20tango%20foxtrot%20uniform .

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Phil Beaver

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.