Wednesday, January 27, 2010

The Judiciary and Popular Will

By Mike Dorf

On Friday, I'll be presenting a paper at a conference at the University of Pennsylvania (sponsored by the U Penn Journal of ConstitutionalLaw) on The Judiciary and Popular Will.  The Symposium is built around (though not limited to) themes discussed in Barry Friedman's terrific new book, The Will of the People.  Readers who have followed Friedman's academic work over the last decade and a half will see in the book the development of points he made in a series of articles tracing the history of the countermajoritarian difficulty (a clumsy phrase coined by Alexander Bickel to refer to the power of American courts to invalidate as unconstitutional laws passed by majoritarian bodies).  But the book is not just a re-packaging of a collection of articles.  It is a lucid and powerful narrative.

What's odd about Friedman's book--or what's odd about the necessity of the book--is that his core point has been known for many years: He shows how the Supreme Court is not in fact a strongly countermajoritarian body.  What's distinctive about The Will of the People is Friedman's demonstration of how the criticisms of judicial review have evolved over time.  It's also chock full of interesting historical analysis.  I learned a great deal about matters that I thought I knew quite a bit about.

Okay, so that's my plug for the book.  So what will I say at the conference?  Below is the abstract of my paper (and truth be told, all I've written so far is this abstract and an Introduction, with the rest taking the form of fragmentary notes, to be polished over the next couple of months):
Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the “countermajoritarian difficulty.”  Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion.  When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion.  But if the modesty of courts dissolves Bickel’s worry, it raises a distinct one: Are courts that roughly follow public opinion capable of protecting minority rights against majoritarian excesses?  Do American courts, in other words, have a “majoritarian difficulty?”  This Essay examines that question from both an interpretive and an institutional perspective.  It first asks whether there is a normatively attractive account of the practice of judicial review that takes account of the Court’s inability to act in a strongly countermajoritarian fashion.  After highlighting difficulties with three of the leading approaches to constitutional interpretation-- representation-reinforcement, originalism, and living Constitutionalism--the Essay concludes that accounts of the Court as a kind of third legislative chamber fit best with its majoritarian bias.  This conclusion has implications for the design of constitutional courts.  The Essay tentatively argues that distinctly constitutional courts staffed by personnel that include some non-lawyers have advantages over supreme courts that include constitutional rights cases as part of more wide-ranging dockets, even as it notes that this approach is not readily adaptable to the American system of diffuse judicial review.
I'll report back on the conference early next week.

9 comments:

Sam Rickless said...

Would a special constitutional court be insulated from the same sorts of pressures that produce a majoritarian slant on SCOTUS? If direct election by the people would produce a court that reflects majority will, and if the current system of presidential nomination and senatorial confirmation produces a court that reflects majority will, then wouldn't any workable system of choosing members of the special constitutional court simply reproduce the same problem in different robes?

Michael C. Dorf said...

The answer to Sam's question is absolutely, yes, there would be the same pressure. My proposal (or thought experiment really) is not meant to take politics out of the constitutional court but to say that given the inevitability of its quasi-political judgment, it ought to be representative of a broader range of perspectives than is a Court of 9 lawyers.

Sam Rickless said...

Perhaps I am more sanguine about the real possibility of non-political judicial decision-making within the system we have now. My own sense is that lawyers could use better philosophical training in law school, and that such training would have an impact on the general legal culture, especially if it became more accepted (say, by the ABA) that lack of philosophical sophistication would count against any SCOTUS nominee. Many of the theories of constitutional interpretation that have had the greatest impact on judicial decision-making (originalism and living constitutionalism among them) wouldn't make it past first base in a run-of-the-mill philosophy of law course. My own sense, at least in respect of SCOTUS's interpretation of the extended bill of rights, is that the Court either finds itself (oftentimes clumsily) reinventing the wheel (a wheel that philosophers invented some time ago and with which they are quite familiar -- as in Fourth Amendment and Due Process law) or making mistakes that most moral philosophers wouldn't even begin to make (Equal Protection law is like this) or making mistakes that drive philosophers of language absolutely bonkers (as in the Heller case on the Second Amendment -- which I still haven't recovered from). I am not making a Dworkin-inspired point here about how constitutional interpretation absolutely requires the application of moral theory. Mostly what I am saying is that many of the tools lawyers need to make the right judgments at the appellate level are far better understood by (analytic) philosophers than they are by anyone else. I think that many constitutional law professors see this, and attempts have been made to bring philosophy into the law school curriculum. But I think we need more of this, not less. And I think it is particularly important for judges who are high up in the appellate chain to continue their education by repeated exposure to philosophical ideas and arguments. Of course, I'm a philosopher. What can I say? I'm biased. ;-)

Paul Scott said...

I think that is probably not true of "any system."

For example, one could remove politics from the system entirely by randomly selecting Justices in a manner similar to jury selection. That would certainly have its own problems, but it would eliminate political influence from playing any part.

Likewise, if you wanted to ensure (or make very much more likely) a counter-majoritarian SCOTUS, you could limit qualifications to constitutional scholars. An administrative body or legislature would set qualifications and, again, from this pool new Justices would be picked either randomly or through some score-ranking based on their scholarship.

I am sure other systems can be imagined as well. I think the only real note here is that giving Justices life-time positions does not render them immune from the political system that otherwise places them in their position.

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برامج said...

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