Next to the exponential growth of government itself, the most noteworthy feature of American political institutions in the past half-century has been the rise and acceptance of judicial supremacy. The Supreme Court is widely viewed today not only as the principal guarantor of the people’s liberties but as the definitive voice of constitutional meaning. Nothing could be more alien to the American political tradition or to the thought of the founders. In the framers’ view, the primary security for rights lay in the Constitution’s artfully balanced structural attributes—federalism, separation of powers, bicameralism, and staggered elections. The judiciary would play a decidedly secondary, if occasionally important, role. Vesting the Supreme Court with more or less exclusive authority to interpret the Constitution would have struck the framers (and most Americans prior to the present era) as a dangerous idea.
How this radical shift came about is a long and complicated story whose intellectual foundations were laid in the Progressive movement’s critique of the founding. They dismissed the idea of natural rights as so much eighteenth-century philosophical baggage and made the structural Constitution seem like a conspiracy hatched by the rich to frustrate popular will. The Progressive indictment paved the way for an even more cynical assault against the founding: the rubric of legal realism, which reduced law to the will of the lawmaker. When Charles Evans Hughes remarked that the Constitution is what the Court says it is, he perfectly captured the essence of legal realism.
Legal realism by turns morphed into diverse forms of postmodernism or overt nihilism, under whose aegis the Constitution has become little more than warm plastic to be molded in accordance with the policy preferences of dominant legal actors. Constitutional advocacy is now widely understood in the law schools as a species of high-toned intellectual gamesmanship. In the end, law is all about power—how to get it and how to use it. Study of the Constitution has been displaced by study of the collective musings of professors and federal appellate judges, particularly those who evangelize on behalf of the “living Constitution.” By that is meant a Constitution remade in the image and likeness of their own policy preferences, masked in the language of democratic aspirations and bearing only a semantic resemblance to the Constitution of 1787.
The principal beneficiary of this new dispensation has been the Supreme Court, which increasingly sees itself as the authoritative voice of democratic ideals. The Court’s rulings in cases and controversies have always been recognized as final, but until fairly recently, its constitutional rationales were open to dispute. Hence Abraham Lincoln’s position on Dred Scott: the Court’s holding bound the parties to the litigation, but the political branches were free to countermand its reasoning. If public policy on “vital questions affecting the whole people is to be irrevocably fixed” by the Supreme Court, Lincoln said, “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”
Lincoln’s argument is not much honored these days. Most of the professoriate would read it as self-justifying political opportunism. Liberal Justices, who believe that the Court’s opinions bind not only the parties before it, but the conscience of the nation, would consider Lincoln a dangerous man. Consider, for example, the instruction of the Court in Planned Parenthood v. Casey(1992):
Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then so would the country be in its very ability to see itself through its constitutional ideals.
To this astonishing claim Robert F. Nagel would reply: nonsense. For the Court to say that its rulings somehow embody the aspirations of the people not only conflicts with our constitutional principles and history, it haughtily presumes, even as it encourages, a servile disposition utterly inconsistent with the spirit of a free people. A judicial imperium, Nagel would say, is not the government our forefathers fought for.
Over the past fifteen years, Professor Nagel, who teaches at the University of Colorado School of Law, has established himself as one of our most forceful critics of judicial supremacy. No one does better at exposing the elaborate intellectual pretense that undergirds much of contemporary constitutional argument. His surgical dissection of leading cases is always elegant, often producing surprising results that prompt deeper reflection. In contrast to many of his peers, Nagel sees the work of the Supreme Court within a broad cultural context. In an earlier work, Judicial Power and American Characterý(1994), he argued that the rise of judicial power both reflects and exacerbates a deep public malaise about the nation’s declining moral condition. Rather than addressing that decline, we rely upon the judiciary to provide us with a false sense of security and certainty. We are not very different from the fairy-tale citizens who praised the emperor’s new clothes.
The same theme is further elaborated in The Implosion of American Federalism. As Nagel’s title implies, federalism’s lot is not a happy one. If it isn’t dead yet, it’s certainly gasping for breath, notwithstanding the fact that the Court has in recent years sought to cabin congressional intrusion on the presumptive prerogatives of the states. Many conservatives were cheered by U.S. v. Lopez (1995), the first case in nearly sixty years to impose limits on congressional power to regulate commerce.
Although he agrees with the result in Lopez and in other cases that purport to shore up the states, Nagel is dubious about their long-run importance. For one thing, the rules elaborated in most of these cases can easily be overcome through clever tweaking of statutory language that leaves federal ýower essentially intact. For another, although the Court may occasionally trim congressional excess at the margins, it is unlikely to engage Congress in a head-on struggle. Those who expect the Court to lead a revival of federalism are looking in the wrong place. Indeed, Nagel argues, the true measure of federalism’s weakness consists precisely in the belief that we must look to the Court to make things right. The decline of federalism and the rise of judicial supremacy, in short, are the opposite sides of a single coin.
A truly robust federalism, in Nagel’s view, requires not only a legal structure conducive to its maintenance, but a settled disposition on the part of the people in favor of local diversity and prerogative, and a disciplined love of liberty that transcends the desire for immediate gratification. None of these, he says, are to be found in great abundance these days. Instead, he finds a desire to avoid risk, an impatience with conflict, and a servile yearning for simple solutions decreed by centralized authority. These are not the hallüarks of a people that wishes to remain free. Indeed, says Nagel, “we may be witnessing the rapid realization of Tocqueville’s foreboding vision of a mass of striving but discontented individuals ‘endeavoring to procure . . . the pleasures with which they glut their lives’ under the shadow of one ‘immense and tutelary power.’”
A glum prognosis, to be sure, but one that is hard to take issue with. Virtually every important change in American social policy in the past two generations has been driven, if not initiated, by the judiciary. The Supreme Court has rewritten many of our cultural rules on the most sensitive matters, touching everything from sexual mores and the family to the place of religion in the social order. The striking feature in the Court’s agenda is not only its radical departure from constitutional text and custom, nor even its almost contemptuous disregard for the expressed will of representative bodies. The remarkable thing is that, despite occasional wailing about wretched judicial excess, the American people tolerate it.
Not only do we willingly yield our responsibilities and liberties, Nagel contends, but we lie to ourselves when we do so. In his concluding chapter, “Lies and Nationhood,” Nagel argues that the Clinton impeachment controversy demonstrates how deeply the cynicism of the legal elite has cut into common culture. The President’s artful conjugation of “is,” in Nagel’s view, did not differ qualitatively from the routine pangloss of the professorial class when, for example, it argues without blushing that the right to abortion is deeply rooted in our constitutional tradition. Clinton’s defense was but a particular application of the wink-and-nod sophistry that today passes for sophisticated legal advocacy. Everyone knew he had lied and dishonored the office of the President, but a majority of the public comforted itself either by pretending he hadn’t, or if he had, by pretending it didn’t matter. The entire sorry episode, Nagel concludes, confirms that “our system rests precariously on the edge of systematized dishonesty.”
Michael M. Uhlmann is Adjunct Professor of American Government at Claremont Graduate University.