Taking Its Toll: Partisan Judging and Judicial Review

Article excerpt


Most Americans would surely like to believe that the text of the Constitution, the intent of the Founders, the decisions of Marshall and Story, and of Holmes and Cardozo would substantially constrain the discretion of the modern Supreme Court. Presumably, the Court's very legitimacy rests largely on the belief that the Court operates within such constraints. Yet many serious students of the Court would challenge those assumptions as embarrassingly out-dated. As early as the 1920s, Legal Realists argued that judges did not discover objective legal truths when they decided cases; their decisions reflected a myriad of economic and social forces, including the prejudices of their time and class. In the field of constitutional law, history, text, and precedent are so malleable, some would argue, as to impose no meaningful limits, or at least no limits the strong-willed justice is bound to respect. Many share the view of Sanford Levinson of the University of Texas School of Law: "... [t]here are as many plausible readings of the United States Constitution as there are versions of Hamlet." (1)

This article attempts to provide a representative overview of recent scholarship on the modern Supreme Court, an institution which, for our purposes, dates from the appointment of California Governor Earl Warren as Chief Justice in 1954. (2) The focus is on a few simple questions: How does the Court decide cases, what should its role be in a democratic system, and what impact do its decisions have, either in promoting social change or maintaining the Court's influence and prestige? More precisely, Section II surveys the debate over how the Court should exercise its power of judicial review. Section III reviews critiques, from left and right, of the Court under Warren and under his successor, Warren Burger. Section IV examines some ominous trends on the Court that have accelerated since the ascension of William Rehnquist to the Chief Justiceship. Section V considers both the nature of the Court's public support and its status among the scholars and intellectuals who watch it most closely.

The literature hardly supports the popular view of a powerful and majestic tribunal impartially dispensing equal justice under law. In this cynical age, that is not news. But the contemporary scholarship does not depict a merely fallible Court occasionally reaching a disagreeable result; it questions the Court's competence, its effectiveness in achieving its own objectives, and its view of its role in the American political system. Most striking is the corrosive effect of the decline of the concept of the Court as a judicial institution administering some identifiable body of constitutional law. The liberal activism of the Warren Court still has its defenders, but support for the modern Court is otherwise surprisingly thin, thin enough to raise questions about the Court's ability to play as dramatic a role in the history of the next half century as it seems to have played in the last. This more modest view of the Court highlights, as we shall see, the value of the traditional ideals of the judicial craft: impartiality, scholarship, and moderation.

One caveat is in order. If modern scholarship is not particularly friendly to the Court, one wonders how much help the scholars have been to the justices. Besides being increasingly arcane and inaccessible to anyone but the specialist, the literature offers nothing approaching a consensus on what the Court ought to do, or even how the Court ought to go about doing it. The most active field of constitutional inquiry in the era of the modern Court has been a debate not over the merits of what the Court has done in particular cases, but over how the Court should approach the question of judicial review. If then for no other reason than the topic looms so large in the literature, we must begin with a review of the debate over an appropriate theory of constitutional decision-making. …


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