Politics, Constitutional Interpretation, and Media Ecology: An Argument against Judicial Minimalism
Ohlendorf, John David, Harvard Journal of Law & Public Policy
There is a venerable tradition of judicial humility in American constitutional law. The modern conception of judicial restraint (1) can be traced back to an article written by Professor James Bradley Thayer in 1893. (2) Thayer's argument that the Court should give all possible deference to Congress's interpretation of the Constitution (3) influenced Justice Holmes, who employed it in his battle against economic due process doctrine and the perceived excesses of a conservative Court. (4) But it was Justice Holmes's friend and colleague Justice Brandeis who distilled minimalism to a specific set of doctrines in his 1936 concurrence in Ashwander v. Tennessee Valley Authority. (5)
In 1962, Professor Alexander Bickel picked up and expanded the argument for restraint. He added the term "passive virtues" to the vocabulary of judicial restraint, (6) building on Justice Brandeis's 1936 opinion. (7) According to Professor Bickel, judicial restraint is necessary because of the tenuous legitimacy of judicial review in a democratic system. The unelected, insulated nature of our courts means that "it would be intolerable for the Court finally to govern all that it touches, for that would turn us into a Platonic kingdom contrary to the morality of self-government." (8)
Modern judicial minimalism has found a new home in conservative constitutional theory. The specter of substantive due process has been reborn, (9) and like Justices Holmes and Brandeis a century earlier, conservative legal scholars have found in the doctrine of restraint an effective weapon against judicial excess--excess spawned, this time, from the Left. (10) Indeed, the new Chief Justice, widely identified as a conservative, has spoken in favor of restraint, (11) making an exploration of the doctrine a timely enterprise. This Note attempts such an exploration from a broadly originalist vantage point, assuming for present purposes that the Framers' understanding of the Constitution is relevant to our own understanding of that document.
Parts I and II examine the doctrine of judicial minimalism in light of a familiar approach to original understanding: Would the Framers have been comfortable with Chief Justice Roberts's assertion that "[i]f it is not necessary to decide more to dispose of a case ... it is necessary not to decide more"; (12) or would they have opposed such a notion? Part III introduces the academic discipline of media ecology, the study of how changes in media technology affect institutions. Media ecology asks questions such as, "how do television and the Internet affect the type of political discourse that Americans engage in?" This line of inquiry reveals ways in which the modern media environment has affected the institutional strengths of the political framework envisioned by the Framers. Finally, Part IV contends that the advocates of judicial minimalism are mistaken both about the Framers' vision and the ways in which our political institutions have developed.
I. THE FRAMERS AND CONSTITUTIONAL INTERPRETATION
A. The Constitutional Conversation
Some proponents of judicial minimalism describe the Court's role in constitutional interpretation in terms of "dialogue." (13) Indeed, Bickel idealized judicial review as a "colloquy with the other institutions of government." (14) Referring to constitutional interpretation as a colloquy rather than a monologue highlights an important aspect of judicial minimalism: by taking a more subdued role in interpreting the constitutional text, the Court invites the other two branches of government to engage more actively in the enterprise. (15)
Although the Framers may not have couched their vision in terms of dialogue, they would have been comfortable with the idea that the two political branches had a role to play in constitutional interpretation. The records of the 1787 Convention show that the Framers hoped the President would play a role in interpreting the Constitution. …