Making Our Democracy Work (2 page)

My argument in
Part II
takes the form of examples drawn from history and from the present day, illustrating the Court’s relationships with Congress, the executive branch, the states, other courts, and earlier courts. Part of my aim is to show how the Court can build the necessary productive working relationships with other institutions—without abdicating its own role as constitutional guardian.

The Court’s role in protecting individual liberties presents special challenges to these relationships, some of which are discussed in
Part III
. I describe how this protection often involves a search for permanent values underlying particular constitutional phrases. I describe a method (proportionality) useful in applying those values to complex contemporary circumstances. And I discuss the Japanese internment during World War II as well as the recent Guantánamo cases to illustrate the difficulty of finding a proper balance between liberty and security when a president acts in time of war or special security need.

Throughout, I argue that the Court should interpret written words, whether in the Constitution or a statute, using traditional legal tools, such as text, history, tradition, precedent, and, particularly, purposes and related consequences, to help make the law effective. In this way, the Court can help maintain the public’s confidence in the legitimacy of its interpretive role.

The various approaches that I discuss in Parts II and III fit together. They constitute a set of pragmatic approaches to interpreting the law. They provide a general perspective of how a pragmatically oriented judge might go about deciding the kinds of cases that make up the work of the Supreme Court. I do not argue that judges should decide all legal cases pragmatically. But I also suggest that by understanding that its actions have real-world consequences and taking those consequences into account, the Court can help make the law work more effectively. It can thereby better achieve the Constitution’s basic objective of creating a workable democratic government. In this way the Court can help maintain the public’s confidence in the legitimacy of its interpretive role. This point, which returns full circle to
Part I
, is critical.

At the end of the day, the public’s confidence is what permits the Court to ensure a Constitution that is more than words on paper. It is what enables the Court to ensure that the Constitution functions democratically, that it protects individual liberty, and that it works in practice for the benefit of all Americans. This book explores ways in which I believe the Court can maintain that confidence and thereby carry out its responsibility to help ensure a Constitution that endures.

P
ART
I
ADDRESSES THE ISSUE OF DEMOCRATIC LEGITIMACY—
how the Supreme Court has come to gain public trust even when its decisions are highly unpopular. The Constitution’s efforts to ensure a
workable
constitutional democracy mean little if the public freely ignores interpretations of the Constitution that it dislikes. We simply assume today that when the Court rules, the public will obey its rulings. But at various moments in our history, the Supreme Court’s decisions were contested, disobeyed, or ignored by the public and even by the president and Congress.

This part describes the important power of judicial review—how the Supreme Court first came to assume the powers it now has to interpret the Constitution authoritatively and to strike down as unconstitutional laws enacted by Congress. Subsequent chapters present historical snapshots of how, in fits and starts, the Supreme Court came to be accepted and trusted as a guardian of the Constitution. The cases presented include an example in which the president and the State of Georgia refused to implement a Court decision protecting the Cherokee Indians; the example of
Dred Scott
, where the Court itself, misunderstanding the law, its own authority, and the likely public reaction, refused justice to an individual because of his race; and an example in which the president had to send troops to Little Rock, Arkansas, because so many people there, including the governor, refused to comply
with the Court’s decision, in
Brown v. Board of Education
, holding segregated schools unconstitutional. These examples help us understand the importance and the value, the uncertainty and the pitfalls, that predate today’s widespread acceptance of Court decisions as legitimate. They help demonstrate that public acceptance is not automatic, and that the Court and the public must work together in a partnership of sorts, with mutual respect and understanding.

T
HE
S
UPREME
C
OURT
can strike down statutes that violate the Constitution as the Court understands it. Where did the Court find this power of judicial review? The Constitution itself says nothing about it. One can easily imagine a Supreme Court without the power to patrol constitutional boundaries.

Canada’s Supreme Court, for example, can strike a statute down as unconstitutional, but it does not necessarily have the final word on the matter. The legislature, without amending the constitution, may in certain instances overturn the result and restore the statute. Similarly, the courts in Britain and New Zealand are charged with interpreting parliamentary statutes so as to ensure their compatibility with their nations’ constitutional traditions and, more recently, bills of rights (in Britain’s case, the European Convention on Human Rights). If a court in either country is unable to interpret legislation consistently with the bill of rights, the court can make a “declaration of incompatibility.” But doing so does not invalidate the legislation. After a court makes a declaration of incompatibility, it is up to Parliament to decide whether to amend or repeal the legislation that the court found violated citizens’ rights. Parliament could choose to leave the legislation in place, notwithstanding the court’s ruling.
¹

Many commentators, scholars, and ordinary citizens have viewed the U.S. Supreme Court’s power of judicial review as out of place in a
democracy. Why should a democracy, a political system based on representation and accountability, entrust the final or near-final making of such highly significant decisions to judges who are unelected, independent, and insulated from the direct impact of public opinion?

There are several partial answers to these questions. Some decisions
must
be made undemocratically—for example, the criminal trial of an unpopular defendant. The defendant’s rights are rights the defendant can assert against the majority’s will, and other constitutional rights also have this characteristic. Our system of democratic government is not pure majoritarian democracy, but majoritarian democracy with boundaries set by our constitutional structure and by rights that the Constitution ensures to individuals and minorities against the majority’s desires. Moreover, most people understand that democratic governments, like all governments, need stability; and stability is inconsistent with a legal system whose content varies daily and directly with changes in popular opinion. Modern government also requires delegation of decision-making power, which means that the content of treaties, administrative rulings, even statutes, will not always mirror the views of the whole electorate or even a significant part of it. Instead, they mirror the more expert knowledge that the delegation of power has allowed. Thus most of us are aware that any actual democracy contains a host of institutions and procedures that are not purely democratic.

People also understand that the power to interpret a statute will sometimes resemble the power to interpret the Constitution. Delay, lack of legislative time, lack of public interest, and public hesitance to change a judicial result all mean that legislatures are not often able to overturn judicial interpretations of statutes as a practical matter, even though they may have the power to do so. This legislative reluctance, along with the unpopularity of overturning decisions that are intended to protect human rights, has meant that legislatures in Canada, for example, have overturned few, if any, of their courts’ constitutional decisions, despite their legal power to do so.
²

These answers are not completely satisfactory, however. The point remains that the Court’s power to give binding effect to a constitutional interpretation is virtually ironclad. This power often concerns matters of great importance to the nation, and it can well place the
Court and other governmental institutions at loggerheads. Consider the Court’s reapportionment decisions, which radically changed previous methods for drawing election district boundaries and consequently changed election results in many states; or its “affirmative action” decisions, which limited the use of race as a criterion for, say, assigning students to a secondary school to increase racial diversity there; not to mention its abortion decisions, which struck down laws that prevented women from obtaining abortions. Consider the Court’s decisions finding prayer in public schools unconstitutional—decisions that have shaped the public debate about the relation of government and religion. Consider how its “search and seizure” decisions changed the way in which many police departments operate. Consider how its desegregation decisions changed what previously amounted to a caste system in the South.

In a word, the Court’s application of judicial review has brought about important and often long-lasting changes. Judicial review has resulted in significant limits on the actions of other government bodies, on the terms of public debate, and on the ways in which Americans lead their lives. Hence, it still makes sense to ask why the judiciary does, or should, possess this power, a far stronger power than the power to interpret a statute.

Some have found an answer in the need to ensure a workable
democratic
system. Free speech helps the voters exercise an informed democratic choice, for example, by helping citizens obtain access even to extreme and highly unusual points of view. Equal protection of the laws helps ensure that government will not improperly weigh one citizen’s voice more heavily than another’s. Thus, to exercise a power that seeks to ensure a well-functioning democracy is not anomalously undemocratic.

Others find answers in the Constitution’s dispersion of power among so many different government bodies. This dispersion, they believe, calls for a referee. Still others find justification in the need to protect minority rights. Democracy, they argue, refers to the will of a majority that may or may not act consistently with equal respect for minorities. Given the history of a twentieth century during which democratically elected governments mistreated minorities and then abandoned democracy altogether, one might see judicial review, here
and abroad, as a kind of institutional ballast, helping to stabilize the kind of democracy that respects minority rights and helps to prevent the “people drunk” from undoing the will of the “people sober.”
³

These answers may help explain the anomaly, but they cannot fully explain why the Court has the power to find, say in the Constitution’s word “liberty,” certain rights that have little to do with the preservation of democracy or even the protection of minorities. We may still ask why the framers wrote a document that gave the Court the last word as to the constitutionality of virtually any congressional statute. Why did that document let the Court assume the power to strike down a statute as contrary to the Constitution?

M
ANY FRAMERS
, F
EDERALISTS
and even some Republicans, expected the undemocratically selected Court, at least on occasion, to strike down statutes it believed were in conflict with the Constitution. James Madison, for example, pointed out that the Bill of Rights would protect individuals from abuse by a majority. And he immediately added:

Alexander Hamilton wrote the same in
The Federalist Papers
—a series of newspaper articles in which he, James Madison, and John Jay advocated adoption of the Constitution. Hamilton said that the Constitution’s limitations

The Constitutional Convention and ratification process resounded with similar language. Among those who expressed support for the power of judicial review were Elbridge Gerry of Massachusetts (“[The judiciary possesses] a power of deciding …[on a law’s] constitutionality”); Rufus King, another delegate from Massachusetts (“[The judiciary needs no veto power, for] they will no doubt stop the operation of such [laws] as shall appear repugnant to the constitution”); and James Wilson, speaking at Pennsylvania’s Ratification Convention (“[When the judges] consider [a law’s] principles, and find it to be incompatible with the superior power of the Constitution,—it is their duty to pronounce it void”). One present-day scholar reports that “apparently no delegate” to the Constitutional Convention “questioned the repeated references to the power of the judiciary to ignore unconstitutional laws.” Nor was anyone “surprised by the repeated references to judicial review—precisely the opposite reaction one would expect if judicial review had not yet been generally embraced.”
⁶