Judgment Calls: Principle and Politics in Constitutional Law
Daniel A. Farber & Suzanna Sherry
Oxford University Press, 2009, 224 pages
Reviewed by Brannon P. Denning
Railing against the “the conventional academic wisdom . . . that constitutional adjudication is simply politics by another name,” Dan Farber and Suzanna Sherry’s new book, Judgment Calls: Principle and Politics in Constitutional Law, is a vigorous defense of judicial review and the notion that judges and justices deciding constitutional cases are not simply politicians manqué. They maintain that it is possible—indeed, essential—to view constitutional adjudication as a uniquely legalact, and not simply as politics by other means.
Farber and Sherry dismiss the countermajoritarian difficulty—the concern that judicial review is suspect because unaccountable members of the federal judiciary can set aside, on constitutional grounds, the policy preferences of federal and state elected officials—as “seriously overblown.” Moreover, they argue, a series of external and internal safeguards—including stare decisis, multimember panels, court hierarchy, public scrutiny, and the judicial selection process—ensure that courts will, over the long run, remain in the mainstream of American constitutional tradition. They worry, though, that some of these safeguards are under assault, not the least of which is the entire notion of adjudication as an activity separate from politics. Such opinions, if they become prevalent, can “invidiously . . . influence judges and thus become a self-fulfilling prophecy.”
Judicial review was, they argue, inevitable in our system. The alternatives—congressional supremacy and departmentalism, where each branch evaluates the constitutionality of its own actions—were tried and found wanting. (The unpopularity of Congress makes a revival of congressional supremacy especially untenable today. Farber and Sherry doubt that as “one of the least popular of all government institutions,” the “public would entrust it with final authority over all of our liberties.”) As for departmentalism, “[t]he Civil War illustrated in the most graphic way possible the dangers of polycentric constitutional interpretation. While multiple interpretations with no authoritative final arbiter are theoretically possible, they carry an unacceptably high risk of instability.” Moreover, departmentalism “leaves [the] branches as the sole judges of the constitutionality of their own actions, providing no remedy for the founding generation’s mistrust of legislative and executive power.”
And what of the countermajoritarian nature of judicial review? They write that “there is too frequently a tendency to view judges as if they were self-appointed, all-powerful Platonic guardians, while viewing the democratic qualities of the other branches through rose-tinted spectacles.” The Constitution’s institutions are not all that majoritarian, they point out, citing the equality of state representation in the Senate and the electoral college as examples. Further, constitutionalism itself places some issues out of reach of electoral majorities—that is the point of a binding constitution. They conclude that “the countermajoritarian difficulty is as much an attack on constitutionalism as on the specific institution of judicial review.”
Farber and Sherry celebrate—indeed revel in—the Court’s countermajoritarian role. In the end, they maintain that judicial review has been a net good.
Judicial review is no panacea, but the Supreme Court has time and again stood up for fundamental rights that any democracy should respect: the right to equal citizenship regardless of race, the right to criticize the government and denounce the established order, the right to have everyone’s vote weighted equally, and (most recently) the right to a hearing before a person is sentenced to indefinite imprisonment. These rulings have helped maintain a free society, not to subject it to judicial tyranny.
As they see it, “[t]he real majoritarian issue raised by judicial review is . . . to what extent judges should defer to legislative interpretations rather than exercising their own discretion. The answer to that depends on what it is we think judges are doing when they interpret the Constitution.” For them, “constitutional interpretation is an exercise of law, not raw politics, and thus . . . judges are engag[ed] in essentially the same task when they interpret the Constitution as when they decide any other legal question, such as the interpretation of a statute.”
What keeps judicial review from devolving into some sort of black-robed oligarchy? Farber and Sherry argue that it is not top–down interpretive theories that seek to turn judges into automatons. Discretion is an inevitable product of our judicial system. Safety lies, rather, as it has since the early days of the republic, in the prudent judgment of individuals and in the institutional safeguards that operate to constrain the role courts play in our political system. The bulk of their book is devoted to describing their “deceptively simple” theory of judging in which “the first virtue of judges is prudence”: “Respect precedent, exercise good judgment, provide reasoned explanations, deliberate with your colleagues, and keep in mind the possible responses of critics.” They recognize that “individual judges may lack such prudence,” but conclude that “the system as a whole tends to outperform its weakest members.”
Judgment Calls is well- written, succinct, and wonderfully argumentative. The book furnishes a number of points of departure for a would-be reviewer. I will confine my remaining space to two points: (1) Farber and Sherry’s defense of judicial supremacy, and (2) their premise that constitutional interpretation is no different from any other legal act. I mention these because there is a close relationship between them, but one that remains largely implicit throughout the book.
When Farber and Sherry defend judicial review, they are really defending the particularly strong form of judicial review exercised by the United States Supreme Court, whereby the Court assumes the ultimate interpretive authority over the Constitution in cases it accepts for decision. As the Court famously put it in Cooper v. Aaron, “the federal judiciary is supreme in the exposition of the law of the Constitution . . . .” Its interpretations, moreover, bind the other branches, even if actors in those branches were not parties to the cases in which the Court made its pronouncements. Farber and Sherry criticize any interpretive arrangement that would leave elected branches as sole judges of the scope of their powers, but ignore the fact that strong-form judicial review places the courts—the Supreme Court in particular—in precisely that position. Judicial review might have been inevitable to the Founders, but, as the presence of weaker forms of judicial review among constitutional courts around the world suggests, judicial supremacy does not follow ineluctably from judicial review.
The arguments offered in defense of judicial supremacy—stability and the need for finality—are often oversold. Farber and Sherry offer the Civil War as the logical consequence of the lack of a final arbiter but seem to ignore that the Court itself contributed to that conflagration through its attempt, in Dred Scott v. Sandford,to judicially “settle” the question of slavery in the territories for all time. It is not clear that finality is even all that necessary. Think of the number of important constitutional questions—war powers and claims of executive privilege are two examples—that arise and are resolved without a judicial umpire. Though messy to witness, the settlement of competing constitutional claims of rival political branches can produce a stable resolution that, if not “final,” is nevertheless accorded considerable precedential value in future controversies.
But judicial supremacy does make sense if you believe, as Farber and Sherry seem to, that constitutional interpretation is an exclusively legalact. They liken constitutional review to statutory interpretation or the supervision of administrative agencies; as a legal act, it is a function courts are uniquelyequipped to perform, compared to other branches. I think both propositions are debatable.
What distinguishes interpretation of a statute or review of an agency decision from constitutional review of that same statute or agency decision, of course, is that the latter may not be altered except through the extraordinarily difficult Article V amendment process. Congressional reversal of the Court’s statutory decisions is not common, but it is certainly more common than an Article V amendment—especially if reversal is actively sought by the political branches, an issue of high public salience, or both. Such reversal is simply not possible in judicial review of constitutional cases under the American system.
Not only is the analogy to ordinary legal tasks inapt, I think it devalues constitutional interpretation as well. The Constitution is a legal document, true; but is also a political one—it is literally a constitutive document that provides the foundation for our polity. If war is too important to be left to generals, as Clemenceau famously quipped, then perhaps responsibility for maintenance of the Constitution is too important to be left to judges alone. Yet, Farber and Sherry’s book belies a deep disdain for elected officials, implying that mere politicians would never advance constitutional claims other than as opportunistic cover for their policy goals. And yet that is precisely the critique that they argue is corrosive and risks becoming a self-fulfilling prophecy when made by law professors or pundits about judges.
The Supreme Court gave us Brown v. Board of Educationand New York Times Co. v. Sullivan, as well as Dred Scott and Korematsu v. United States. Whether the Court has given us more of the former than the latter is really an empirical question, one that Farber and Sherry do not try to answer. But if we celebrate cases like Brown as examples of what the Court can accomplish, then I think we ought to acknowledge that potential in Congress, too, as evidenced by the Civil Rights Acts of 1964 and 1965, the Religious Freedom Restoration Act, and even the Firearms Owners’ Protection Act. Those represent congressional efforts to protect liberties no less than the canonical Court cases that Farber and Sherry invoke.
I wholeheartedly agree that “prudence,” as Farber and Sherry define the term, is a cardinal judicial virtue. Its presence in individuals is what distinguishes truly remarkable judges from their ordinary or slightly above-average colleagues. And they go further than Alexander Bickel did, in his paean to prudence, by identifying the qualities of prudent judging. But judicial humility and prudence are not only virtues in the internal sense—that is, to be practiced in judges’ dealings with one another and with parties to the cases that come before them. Prudence is a desirable quality from an external point of view, too. Judges should be mindful of the limits of judicial power, of the need for support from other branches to give their decisions force, and of the fact that other branches, too, have a role in interpreting the Constitution. The Court does not operate in isolation of the other branches; nor should it.
.Daniel A. Farber & Suzanna Sherry, Judgment Calls: Principle and Politics in Constitutional Law 123 (2009).
.Id. at 26.
.Id. at 6.
.Id. at 123.
.See id. at 11–12 (suggesting why judicial review is essential to American constitutionalism).
.Id. at 14.
.Id. at 19.
.Id. at 16.
.Id. at 21.
.Id. at 24–25.
.Id. at 31.
.Id. at 30.
.Id. at 31.
.Id. at 27–29.
.Id. at 167. Professor Sherry has followed up the book’s discussion of judging with an article describing “four pillars” of constitutional doctrine that attempts to identify best practices in crafting constitutional opinions. Suzanna Sherry, The Four Pillars of Constitutional Doctrine, 32 Cardozo L. Rev. 969 (2011).
.Farber & Sherry, supra note 1, at 167.
.358 U.S. 1 (1958).
.Id. at 18.
.See, e.g., William Michael Treanor, Judicial Review Before Marbury, 58 Stan. L. Rev. 455, 457 (2005) (arguing that judicial review was better established at the time of Marbury than previously recognized).
.See generally Mark V. Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law 47 (2008) (discussing weak-form review in New Zealand, the United Kingdom, and Canada); Mark Tushnet, Weak-Form Judicial Review and “Core” Civil Liberties, 41 Harv. C.R.-C.L. L. Rev. 1, 4–7 (2006) (commenting on other systems with weak-form review). According to Larry Kramer, the Court itself did not claim ultimate interpretive authority until the mid-twentieth century. Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 214 (2004).
.60 U.S. (19 How.) 393 (1857).
.For example, the impeachment of President Bill Clinton followed a history of partisan impeachments and may serve as a precedent in future controversies. Richard K. Neumann Jr., The Revival of Impeachment as a Partisan Political Weapon, 34 Hastings Const. L.Q. 161, 164 (2007).
.John Hampden Jackson, Clemenceau and the Third Republic 228 (1965).
.347 U.S. 483 (1954).
.376 U.S. 254 (1964).
.323 U.S. 214 (1944).
.Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U.S.C. § 2000 (2006)).
.Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 445 (codified as amended at 42 U.S.C. §§ 1971, 1973 to 1973bb-1 (2006)).
.Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (codified at 42 U.S.C. § 2000bb to 2000bb-4 (1993)).
.Firearm Owners’ Protection Act of 1986, Pub. L. 99-308, 100 Stat. 449 (codified as amended in scattered sections of 18 U.S.C.).
.See Farber & Sherry, supra note 1, at 167 (explaining that judges exercising prudence “[r]espect precedent, exercise good judgment, provide reasoned explanations, deliberate with [their] colleagues, and keep in mind the possible responses of critics”).
.Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962).