On Judicial Review: Laurence H. Tribe, Jeremy Waldron, and Mark Tushnet Debate

...That some scholars may have expected more from such rulings than a nudge in the direction of social justice and a muchneeded reminder about the meaning of equality and liberty, or might have assumed the judiciary could take steps this bold on a regular basis, shows only that some academics are naïve about the difficult dynamics of social change...

...Saying, with Tushnet, that "Right now, Americans who benefited from Brown get nothing at all from the Supreme Court," underestimates the degree to which the legal machinery that today limits the ravages of unchecked racism stands on, and depends upon, the foundation Brown furnished...

...Indeed, it's hard to imagine how a political and legal regime could function with robust judicial review of executive action, including action that amounts to the application of laws to particular individuals and cases but without such review, except at the sufferance of Congress, of laws as such...

...This would be an especially implausible role when the changes needed entail redistributing wealth or otherwise reordering economic life...

...So, too, saying that "judicial review simply puts legislated programs of affirmative action at risk" fails to take into account the importance of a Supreme Court decision that rejects a claim of unconstitutionality and thereby helps to legitimate deeply controversial but badly needed government action...

...Yet it is in controversies over state and local laws that the Court's most controversial rulings have been handed down: think of school prayer, abortion, racial integration, sodomy, the Pledge of Allegiance...

...Are we to countenance a legal system whose highest court may prevent the states from imposing a particular obstacle to first-term abortions because it unduly burdens the rights of women to choose whether or not to remain pregnant, only to discover that the Court— upon "finding" that every fetus is a person from the moment of conception and is entitled to the use of its mother's body for the ensuing nine months—is powerless to protect those very rights from national legislation imposing the identical obstacle...

...Surely its left-leaning proponents cannot believe that the case for judicial review depends on the fanciful proposition that life-tenured judges charged with enforcing a written constitution can serve successfully as the primary vehicles for progressive social change...

...Abandon that, and we abandon the rule of law that is among the defining elements of the "democracy" we preach around the globe...

...Whatever their position on judicial review of legislation, few of those who urge taking the Constitution away from the Court seem prepared to live with the specter of a judicially unchecked executive...

...When Congress flagrantly violates the separation of powers, rides roughshod over the sovereignty of the states, or decides unilaterally that a particular individual should be kept in a persistent vegetative state (against what the state courts have determined was her wish to end such intrusion), the amendment would compel the Court to uphold that naked exercise of lawless power simply because it was done by Congress, in the name of "the people...

...If Congress, for example, enacts measures treating the president, or the fifty states, as mere agents of the central government, akin to mid-level agency bureaucrats, is the resistance of the president or of the fifty state legislatures to be struck down under the Supremacy Clause for conflict with congressional commands that themselves may not be reviewed...

...Sounding out just as the courts, already conservative, appear ready to take a turn still further to the right, the clarion call to "take the Constitution away from the Court" strikes a defensive note—one nicely suiting the tune of right-wing critics of the federal bench...

...Yet Tushnet's proposed "End Judicial Review Amendment" would mandate exactly that...

...Accepting that conclusion requires no more "distrust of politics and of the people," in Tushnet's words, than "We, the People" had when we ratified the words "We . . . do ordain and establish this Constitution for the United States of America...

...Is it the left's sensitivity to accusations of elitism...

...LAURENCE H. TRIBE writes extensively on constitutional law and is the Carl M. Loeb University Professor at Harvard Law School...

...Two leading legal philosophers argue with Tushnet and he replies—Eds...

...WHEN PROMINENT left-leaning scholars enlist in the right wing's longstanding war on the independent judiciary's enforcement of the Constitution, something suspicious is afoot...

...To live by a written constitution is already to recognize that, although the people are to govern themselves (facilitated by a framework that itself at times demands judicial maintenance and even repair), they must do so subject to commitments that attempt to protect basic human rights...

...It does not follow that we should strip the Court of its power to enforce basic constitutional commitments that no political branch or arm of government can be counted on to honor when they stand in the way of something urgently desired...

...And saying, with Tushnet, that "anti-sodomy laws were enforced only sporadically before Lawrence" misses the point that they were, as the Court recognized, invoked (even when not directly "enforced") as a foundation for treating sexually active gay men and lesbians as practicing criminals properly relegated to second-class citizenship...

...That it was a civil war and decades of political struggle that made possible most of what ARGUMENTS has been achieved in integrating the races, or that it was a century of political mobilization that made progress toward women's equality possible, or that it was a similar if briefer struggle that lay behind the increasing acceptance of gay men and lesbians, cannot gainsay the importance to each of these causes of the Supreme Court decisions that gave them constitutional legitimacy...

...WHY, THEN, the push for so radical a deconstruction of our constitutional order...

...They recall how often American presidents have acted in ways virtually all now regard as unconstitutional—from Harry Truman's unilateral seizure of the steel mills to Nixon's effort to stop publication of the Pentagon Papers to the current president's attempt to lock up American citizens as "enemy combatants" in the war on global terrorism and all but throw away the key...

...But my hunch is that muffling the Supreme Court's constitutional voice would in the end yield less, not more, public deliberation about what the Constitution means by the "equal protection of the laws," the "free exercise of religion," or the "establishment of religion...

...That the Court's understanding might sometimes differ from Tushnet's or Representative Tom DeLay's or mine hardly demonstrates that the status quo entails autocratic rule by the subjective preferences of nine people who happen to be wearing robes...

...Not even so basic a landmark as Brown v. Board of Education made the earth move, any more than Roe v. Wade ended the subordination of women or Lawrence v. Texas will end discrimination against gay men and lesbians...

...HOWEVER counter-intuitive it may seem, some self-identified "liberals" and other self-proclaimed "progressives" have nonetheless called for ending judicial review altogether...

...It would read, "Except as authorized by Congress, no court of the United States or any individual state shall have the power to review the constitutionality of statutes enacted by Congress or by state legislatures...

...Others, recognizing that letting the fifty states and thousands of municipalities govern according to their lights would all but delete the "United" from '4-The United States of America," have conceded the necessity of Supreme Court review of the constitutionality of all state and local action—but not of action DISSENT / Summer 2005 n 81 ARGUMENTS by the national government...

...Division about such concepts within as well as outside the Court says reasonable people seem to differ...

...When the Supreme Court enforces what it understands the Constitution to 82 n DISSENT / Summer 2005 mean, it is enforcing what "the People" solemnly imposed upon themselves and their "Posterity" in the very act of ratifying or amending that Constitution...

...To argue that "democracy" mandates such abdication to the will of a momentary majority of a representative assembly is to confuse constitutional democracy under the rule of law with mob rule...

...The professional and cultural pressures inevitably shaping judicial thought, coupled with the highly political process that puts the justices in power, ensures that, if anything, their reading of the Constitution might hew too close to that of a contemporary majority...

...Talk about the sound of one hand clapping...

...DISSENT / Summer 2005 n 83...

...It's hard to imagine a different result whenever the president is armed with a virtual blank check in the form of a congressional statute delegating him broad discretion...

...And if their reading strays too far, the process of constitutional amendment, while arduous, remains available...

...Compounding the irony, the right's indictment against justices appointed by presidents Richard Nixon, Ronald Reagan, and the first George Bush is capped by the complaint that they dare search the World Wide Web and even at times cite the work of foreign courts...

...These include the rights of distinct minorities that might otherwise be too easily dismissed or subordinated to the pressing interests of those in power...

...It treats the rights of others as though they were ours to expend in bolstering our credibility, and it overlooks the brute fact that "good arguments" in politics aren't guaranteed the time of day if they fail to coincide with people's interests...

...If the proposed disarming of the judiciary is driven by a wish to see more of the electorate engage in dialogue about constitutional questions, I share this goal...

...But it doesn't follow that polling the 535 members of Congress is preferable to reasoning about our differences in the language of constitutional principle...

...How strange to castigate our judges for paying attention to the wider world at the very point in world history when nation after nation, having pondered the American experience and studied the alternatives, comes to the sober conclusion that judges protected from political reprisal for unpopular rulings and charged with enforcing the nation's fundamental law are indispensable to the healthy functioning of a constitutional democracy...

...But proclaiming our willingness, in Mark Tushnet's words, to let "the people" decide whether our clients' rights have been violated— the better to "show that we liberals and progressives really do think that our arguments can ultimately prevail in politics"—is dangerous sport...