In my previous diary, Three big lies wrapped up in the Citizens United decision, I identified the following three lies:
(1) Money is speech.
(2) Corporations are people.
(3) Lies (1) and (2) are not the inventions of conservative judicial activism.
In that diary, I discussed the first two. Now I turn my attention to the third–and beyond.
Something’s definitely up. Another major disagreement with Glenn Greenwald. This time it’s his piece, “Justice Alito’s conduct and the Court’s credibility”. Glenn’s worried that Alito’s mumbling will undermine the Court’s credibility. I’m praying that it will. Glenn thinks the Supreme Court should be above politics. I know that it never has been, and never will–but it can and should be a lot more honest about it, as should we all. Which is why I’d much rather see an open display of the Court’s politics that everyone can see and react to accordingly, as opposed to the hypocritical pretense that they’re “beyond politics”.
Here’s a key passage from Glenn:
There’s a reason that Supreme Court Justices — along with the Joint Chiefs of Staff — never applaud or otherwise express any reaction at a State of the Union address. It’s vital — both as a matter of perception and reality — that those institutions remain apolitical, separate and detached from partisan wars. The Court’s pronouncements on (and resolutions of) the most inflammatory and passionate political disputes retain legitimacy only if they possess a credible claim to being objectively grounded in law and the Constitution, not political considerations. The Court’s credibility in this regard has — justifiably — declined substantially over the past decade, beginning with Bush v. Gore (where 5 conservative Justices issued a ruling ensuring the election of a Republican President), followed by countless 5-4 decisions in which conservative Justices rule in a way that promotes GOP political beliefs, while the more “liberal” Justices do to the reverse (Citizens United is but the latest example). Beyond that, the endless, deceitful sloganeering by right-wing lawyers about “judicial restraint” and “activism” — all while the judges they most revere cavalierly violate those “principles” over and over — exacerbates that problem further (the unnecessarily broad scope of Citizens United is the latest example of that, too, and John “balls and strikes” Roberts may be the greatest hypocrite ever to sit on the Supreme Court). All of that is destroying the ability of the judicial branch to be perceived — and to act — as one of the few truly apolitical and objective institutions.
Greenwald’s first, most obvious mistake is placing the military and the Supreme Court into the same category. The Supreme Court is the head of a branch of government. It is inherently political, of necessity and design. Of course its scope of power is limited–as is the case of all political actors under the Constitution. And because it does not require re-appointment, but can suffer impeachment, it is a simple matter of common sense for it to speak and act politically largely through its own rulings. But its justices can and do give speeches and write books. Its disengagement from overt engagement in other forms of politics is not a Constitutional requirement, but rather a matter of custom and common sense. Why act where it is least powerful, and most likely to be rebuked?
OTOH, the Founders were quite concerned about the politicization of the military, seeing the pathway of military power as the quickest way to despotism, and so they devised an elaborate system of divided power to try to neutralize it as a political entity–including giving states a role in training and arming the militias which were originally intended to largely take the palce of a traditional standing army. (This is what the 2nd Amendment was actually all about: fine-tuning the balance of powers and responsibilities to keep military power in check.) Their efforts have been somewhat defeated over time, but the main impact has been to make the military and its civilian contractors into the most powerful special interest in the land. Since their main political goal is simply self-perpetuation and self-aggrandizement, they willingly conform to the outward charade of being non-political. In partisan terms this is by the best bet: No one runs against them, even though they’re far and away the worst example of “waste, fraud and abuse” ever seen by the US Government.
Now on to Greenwald’s central mistake:
The Court’s pronouncements on (and resolutions of) the most inflammatory and passionate political disputes retain legitimacy only if they possess a credible claim to being objectively grounded in law and the Constitution, not political considerations.
This may well be true in one sense, but it is a patent absurdity in another. If the term “political considerations” is intended narrowly, to cover partisan advantage (as in Bush v. Gore) but not ideology, then it is both sensible and largely achievable, which is part of why Bush v. Gore was one of the worst Supreme Court decisions of all time. But Alito’s mumbling, whatever you think of it, had nothing to do partisan advantage apart from ideology. And it’s precisely this broader meaning–of “political considerations” as matters of ideology that Greenwald essentially decries, as if it were possible to exclude ideology entirely from “being objectively grounded in law and the Constitution”.
In essence, Greenwald is arguing that judges should not be swayed by ideology–which is exactly what the conservatives had been arguing ever since Brown v. Board of Education. Of course, what they really mean is that judges should not be swayed by liberal ideology. Being swayed by conservative ideology is just peachy. Greenwald may think this is just a problem of hypocrisy on their part, but it’s not. It’s hypocrisy based on a lie, because it’s impossible for any judge to interpret the Constitution based solely on “being objectively grounded in law and the Constitution”. There is both not enough in the law and the Constitution to enable one to do this–there are novelties that cannot be foreseen–and at the same time, too little–there are conflicts between different principles, and lines of precedent.
Rather than pretend that there’s an ideology-free ideal that we should all be striving for, there’s a much better alternative: to talk frankly and openly about what people’s Constitutional and judicial philosophies are, rather than pretending that they do not exist. Imagine that: honesty as a basic foundation for approaching the law!
A good example of what this might look like is the subject of the next section.
Partisan Entrenchment Theory
In 2001, in the Virginia Law Review article “Understanding the Constitutional Revolution”, Jack Balkin and Sanford Levinson laid out a realist theory of how constitutional interpretation changes over time–a theory that is profoundly political, because it takes note of and seeks to systematically explore how the political process impacts the functioning of the courts over time. As is often the case, a more succinct summary of their theory can be found in a later work, the 2006 Fordham Law Review article, “The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State”, where they wrote:
The initial formulation of our theory consisted of four basic points: (1) by installing enough judges and Justices with roughly similar ideological views over time, Presidents can push constitutional doctrine in directions they prefer; (2) partly for this reason the Supreme Court tends, in the long run, to cooperate with the dominant political forces of the day; (3) not all Presidents are equally interested or equally effective in entrenching their views in the judiciary, and Presidents face different opportunities and obstacles that may enhance or limit their success; (4) finally, significant changes in judicial doctrine usually reflect larger institutional changes–like the growth of the administrative state–and broader political forces.
Turning back to the original, this passage is particularly crucial:
When a party wins the White House, it can stock the federal judiciary with members of its own party, assuming a relatively acquiescent Senate. They will serve for long periods of time because judges enjoy life tenure. On average, Supreme Court Justices serve about eighteen years.104 In this sense, judges and Justices resemble Senators who are appointed for 18-year terms by their parties and never have to face election. They are temporally extended representatives of particular parties, and hence, of popular understandings about public policy and the Constitution. The temporal extension of partisan representation is what we mean by partisan entrenchment. It is a familiar feature of American constitutional history. Chief Justice John Marshall kept Federalist principles alive long after the Federalist Party itself had disbanded. William O. Douglas and William Brennan, two avatars of contemporary liberalism, promoted the constitutional values of the Democratic party for decades, just as William Rehnquist has for thirty years now proved to be a patient but persistent defender of the constitutional values of the right wing of the Republican Party.
Partisan entrenchment is an especially important engine of constitutional change. When enough members of a particular party are appointed to the federal judiciary, they start to change the understandings of the Constitution that appear in positive law. If more people are appointed in a relatively short period of time, the changes will occur more quickly. Constitutional revolutions are the cumulative result of successful partisan entrenchment when the entrenching party has a relatively coherent political ideology or can pick up sufficient ideological allies from the appointees of other parties. Thus, the Warren Court is the culmination of years of Democratic appointments to the Supreme Court, assisted by a few key liberal Republicans.105
Partisan entrenchment through presidential appointments to the judiciary is the best account of how the meaning of the Constitution changes over time through Article III interpretation rather than through Article V amendment. In some sense, this is ironic, because the original vision of the Constitution did not even imagine that there would be political parties. Indeed, the founding generation was quite hostile to the very idea of party, which was associated with the hated notion of “faction.”106 This vision collapsed no later than 1800; among other things, the Twelfth Amendment is a result of that collapse and the concomitant recognition of the legitimacy of political parties. A key function of political parties is to negotiate and interpret political meanings and assimilate the demands of constituents and social movements; as such, parties are the major source of constitutional transformations. They are also the major source of attempts to maintain those transformations long enough for them to become the new “conventional wisdom” about what the Constitution means.
Now, I don’t agree 100% with Balkin & Levinson’s account. For one thing, I spoke with Balkin last week, and came away with a very strong sense that his focus on institutional politics fails to pick up what I regard as some very important points. Most specifically, I think that the way the GOP has used Roe v. Wade for mass mobilization purposes, but never quite managing to overturn it, has a good deal more significance than Balkin is willing to give it–which is not to say that he ignores it (and, indeed, I agree with much of what he does say, it’s just that I would say a good deal more). But these differences are minor compared to the fairy-tale version of Constitutional interpretation to which Greenwald clings.
What isn’t minor, however, is my broader sense–going beyond Roe as a single, if major, rallying point–that conservative judicial ideology has been used as a core part of conservative movement-building in a way that has no real parallel in American history, and that is fundamentally dishonest, precisely because it claims the same sort of transcendent, apolitical neutrality as Greenwald appeals to. Of course, it needs to be stated again that the conservative movement has been deeply hypocritical, while Greenwald is not. Nonetheless, they do both subscribe to this narrative, which is simply and straightforwardly false.
To add some further nuance–which also further underscores the unreality of conservative claims about high principles, and objective interpretations–here’s what Balkin and Levinson had to say in 2001 about the actual contours of conservative jurisprudence, as opposed to their advertised fidelity to the innermost thoughts of the Founders, and the strictest of objectivity:
In the past ten years, the Supreme Court of the United States has begun a systematic reappraisal of doctrines concerning federalism, racial equality, and civil rights that, if fully successful, will redraw the constitutional map as we have known it.24 This newly vitalized majority has, to be sure, not rethought every part of constitutional doctrine-paradigm shifts almost never do that-but it has made an importantmark on constitutional law. And, not surprisingly, this same bloc of five conservatives handed the presidency to George W. Bush in Bush v. Gore. By doing so, they helped ensure a greater probability for more conservative appointments and more changes in constitutional doctrine. The conservative five are not through yet. They have selected a president to keep their constitutional transformation going.
However, five years later, the picture had changed somewhat, as they explained:
One can only assume conservatives like Calabresi were optimistic about George W. Bush’s ascension to the presidency in 2000, believing that the Court was about to go much further in reining in-or at least significantly cutting back on-the New Deal settlement. This did not happen, however, and one cannot explain the failure to achieve either Calabresi’s hopes or our fears simply by the fact that Bush had no opportunity to alter the Court’s composition during his first term. We do not wish to say that no further changes in federalism doctrine are in the offing: We may see, either through statutory construction or through new constitutional doctrine, new limits on environmental protection.68 Nevertheless, after cases like Nevada Department of Human Resources v. Hibbs,69 Tennessee v. Lane,70 and Gonzales v. Raich,71 it seems fairly clear, at least as of 2006, that the “federalism revolution” has been substantially slowed, if not stopped in its tracks. There will be no return to what Douglas Ginsburg once called “the Constitution in Exile”-a pre-New Deal Constitution with sharply limited federal powers.72
The reason why things did not turn out as we feared flows from one of our own basic assumptions, even if, alas, we did not pay sufficient attention to it. The dominant national political coalition, now controlled by Republicans, simply did not want a serious rollback of the scope of federal power created in the wake of the New Deal. As Clayton and Pickerill suggest, Republicans, since their capture of Congress in 1994 and, even more so, since their recapture of the presidency in 2001, have “advocate[d] federal control over more policy areas,” even as Democrats now “advocat[e] even greater devolution of policymaking power.”73 This is an example of what one of us (Balkin) calls “ideological drift”-the changing political valence of political and legal arguments as they are repeated in ever new political and social contexts.74 In fact, political parties’ commitment to federalism throughout American history has often been opportunistic, premised on the current constellation of political forces. National politicians of both parties are most likely to support federalism (1) when it allows them to punt controversial issues back to state and local governments, thus avoiding responsibility; and (2) when they lack substantial control over the national political process. Conversely, they prefer national solutions when they have sufficient clout to impose them. Thus, it is hardly surprising that Republicans, upon controlling both Congress and the presidency for the first time in almost seventy-five years, would find national power increasingly attractive. Republicans sought to use the national government to favor their own projects and to promote their own regulatory agendas like tort reform, selective tax cuts, and partial privatization of Social Security
And they go on to point out that the change in the Supreme Court parallels what happened with the President and Congress:
Republican hegemony has not produced smaller government, but rather “big government conservatism,” which included the No Child Left Behind Act,75 a Medicare drug benefit,76 as well as hefty doses of pork for the favored constituents of the Republican Party, administrative regulations benefiting specific industries, and tax cuts, tax cuts, and more tax cuts. The national political coalition dominated by Republicans did not seek a weakened federal government with judicially enforced limits, but rather one that could use all of the constitutional powers of the post-New Deal era selectively to benefit its own favored groups and interests. One need only think of proposals for nationwide bans on human cloning and stem-cell research, the federal statute criminalizing partial-birth abortions, or the unsuccessful attempt by the Bush Administration to invalidate Oregon’s Dignity-in-Death Act through an unusually expansive interpretation of a federal statute.77
My underlying point here is quite simple: Conservatives would never have gotten so far if they had talked honestly about what they intended with their judicial appointments. The problem is not that the judiciary is political. It’s that our politics is deeply rotten, and the political use of the judiciary–going back to the original animus aroused by Brown v. Board of Education–is intimately involved in the intentional cultivation of that rotteness.