Archive for June 2, 2009

Watching the Watchers: Douthat’s Honest Critique of Judicial Review

Congratulations to Ross Douthat, writing at The New York Times, for doing what so few conservatives have even attempted: penning a compelling, honest, and bipartisan critique of judicial review.

To be sure, this isn’t a novelty in American thought. In an earlier post here, we recapitulated the great debate between two law professors, Richard Fallon and Jeremy Waldron, regarding the proper place of the judiciary (see footnote four). What’s novel and laudable in Douthat’s article is that he’s managed to take the debate from the classrooms of top law schools, and put it squarely in the public record. Good for him.

Douthat’s central argument is that the Supreme Court evinces an “activist” bent on both sides: conservative justices are just as willing as liberals to overrule the people’s legislative work. They just choose different targets. He’s clearly right. And he’s also right that this propensity has some undesirable side effects. Because politicians can be secure in the knowledge of the Supreme Court’s vigilance, legislators are, to some extent, free to write bad laws, and Presidents are free to sign them, since they won’t have to live with the consequences. And, when faced with the great questions of our time (like abortion, or gay rights), politicians can gleefully punt the issue, ducking any real responsibility for making the hard choices.

There’s no doubt that, were the Supreme Court suddenly restrained by either of Douthat’s proposals (voting rules or term limits), legislative debates and presidential vetoes would all of a sudden matter a lot more. The Court’s retreat would probably leave some constitutional values underenforced. And our politicians would have to rise to the occasion.

But would they? Would a suddenly silent Supreme Court force our elected representatives to deal faithfully with the people? Without the Court, would anyone pick up the constitutional slippage?

More importantly, who cares?

Whether you agree with Douthat’s proposal – limit the Court, make Congress and the President do their jobs – will probably turn upon whether you think some underenforcement of constitutional values is a small or large price to pay for a more democratic democracy. Which worries you more: an “activist” bench, willfully circumventing the majority’s will from both sides of the spectrum; or what Mill foretold (and Toqueville saw) as a theoretical “tyranny of the majority”?

I don’t presume to decide for you. They’re both respectable decisions. It just depends on how optimistic you are about majoritarianism, and America has more than enough triumphs and tragedies in its history to justify either view. For once a conservative pundit has posed the right question about judicial review, and I encourage you to answer.