In Defense of a Political Court

By Terri Jennings Peretti | Go to book overview

CHAPTER 8
Whither the Court and Constitution?

A LIKELY response to the view of the Court as “just another political agency” is, why then should we bother with a Court or Constitution at all? Of what value is the Court or Constitution if constitutional decisionmaking is nothing more than the personal, idiosyncratic views of nine unelected, life-tenured judges? However, as previous chapters have shown, decisionmaking by policy-motivated, politically sensitive judges who are constrained by democratic forces is hardly the sort of idiosyncratic, democratically indefensible decisionmaking that we have been told to expect. Accordingly, the response of “Whither the Court and Constitution?” must be recast and the questions reformulated.

While policy-motivated decisionmaking may be defensible on democratic grounds, there remains the difficult task of ascertaining its limits as well as its particular value in the policymaking process as a whole. What is the appropriate role of value-voting judges in American pluralist democracy? What are the boundaries and appropriate uses of judicial activism motivated by personal political preference? For example, might not repeated judicial protection of legislative and administrative losers become too great a strain on the process of reaching some degree of closure in policymaking, thus inhibiting the system from responding at all to public interests and needs? How then can we evaluate when judicial intervention is appropriate, and how can we judge the substantive content of those interventions?

Before addressing those questions, it will first be helpful to review the primary conclusions reached thus far. I have not attempted to present a comprehensive theory of constitutional interpretation or of the Court's role in American democracy. Rather, I have only thus far examined and subjected to critical analysis the dominant themes and assumptions regarding those two issues we presently find in constitutional law scholarship. For example, in place of the dominant premise of legal autonomy, I have argued for the

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