The Constitution and the Courts: A Question of Legitimacy
Buckley, James L., Harvard Journal of Law & Public Policy
Like ill-mannered children, some issues refuse to go away. In 1992, three Supreme Court Justices issued a plurality opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey(1) in which they declared that even if the Court had erred in Roe v. Wade,(2) that error must stand because to overrule its central holding would inflict "unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law."(3) That being the case, the plurality in effect directed the pro-life community to give up, to stop trying to beat a horse that the Court had already put away.(4) But, the criticisms of Roe and its successors have only increased, and the efforts to narrow and ultimately reverse their holdings continue unabated.
The American Bar Association (ABA) has had no better luck in confining criticism of the judiciary. Three years ago, in reaction to calls for the impeachment of a controversial judge and to congressional initiatives that would have placed various limitations on federal courts, the ABA appointed a Commission on "the Separation of Powers and Judicial Independence" to address those matters. In due course, the Commission issued a report(5) urging the critics in and out of Congress to "cool it" lest their assaults compromise the judiciary's independence and undermine public confidence in the courts. The Commission was especially worried about the latter, citing polls that recorded a significant deterioration in public support for the judiciary.(6) To reverse that regression, the Commission recommended that the courts and Congress, particularly Congress, manifest the "spirit of restraint and common purpose" required by a system based on the separation of powers(7) and, most particularly, it expressed a need to "expand the public's knowledge of our judicial systems and the fundamental importance of the principle of judicial independence in a healthy democratic republic."(8)
Those are serious concerns, and the Commission's recommendations were well taken as far as they went. For whatever reason, however, the Commission largely ignored the part played by judicial overreaching in sparking the court-bashing it decried. Instead, it described charges of judicial encroachment on legislative or executive functions as old hat; and although it acknowledged that judges who failed to decide cases in accordance with the law could be a "threat to their own independence," it proclaimed that "activism" had become a "code word for a personal, political or ideological difference with a particular decision."(9)
Thus, in the hoary tradition of too many professional associations, the ABA's response has largely been to circle the wagons in order to protect the judiciary against attacks from any quarter, however legitimate some of the attacks might be. This appears to be the response of the legal establishment generally, vide an article by the president of the Los Angeles County Bar Association in which he notes that "our state and federal courts are under attack [for activism] on several fronts" and states that lawyers "have a professional and moral obligation to defend both the courts as institutions and our judges against these unwarranted and dangerous threats."(10) What these defenders of the status quo ignore is that not all of the criticism is unwarranted. Serious persons have leveled serious attacks on an approach to constitutional interpretation that has permitted American judges to carve their policy preferences into constitutional granite, and it serves no interest I know of to ignore that fact.
One of the blunter and, given its source, more sobering statements of that concern was issued in 1958 at a conference of the chief justices of the state supreme courts in reaction to the perceived excesses of the Warren Court. Addressing themselves to the problem of federal-state relations, the attending chief justices adopted, by a vote of thirty-six to eight, a resolution in which they respectfully urged
that the Supreme Court of the United States . …