When at Times the Mob Is Swayed

by Burt Neuborne

  (Even the Democratic Supreme Court buckled, though, when things really got tough, upholding the confinement of Japanese Americans in concentration camps during World War II, upholding the jailing of the leaders of the American Communist Party during the Cold War, and upholding the jailing of anti–Vietnam War draft card burners in the late 1960s.)

  When Republicans regained control of the Court in 1972, the Supreme Court quickly reverted to autonomy-driven top-down form, tilting toward the strong in a series of closely divided cases favoring autonomy over equality that shaped the nation’s approach to, among other things, funding public education, racial justice, violence against women, reform of the democratic process, access to the courts, and criminal procedure.

  There’s no reason to expect the current five Republican justices to be more enthusiastic about regulating the strong in order to protect the weak than were the Republican-controlled Supreme Courts of the past. If anything, with the resignation of Justice Anthony Kennedy, a maverick Republican justice who occasionally championed equality rights, things will only get worse as Trump repopulates the Court with handpicked justices, such as Neil Gorsuch and Brett Kavanaugh, likely to further shrink the Supreme Court’s already relatively shallow commitment to equality. Get ready for an effort to push the constitutional balance between autonomy and equality back to where it was before FDR’s New Deal.

  That is cause for alarm, but perhaps not complete panic. Remember, the pre–New Deal legal world included the protection of individual autonomy in Pierce and Myers. And, as we’ll see in chapter 6, it’s not so easy to overturn generations of equality-protective Supreme Court precedent.

  Let me be clear: I do not claim that Republican justices—past or present—were or are hostile to basic equality. Were the mob to reintroduce racial apartheid or engage in intentional racial discrimination, I am confident that Republican justices would join with their Democratic colleagues in declaring overtly racist behavior unconstitutional. Nor do we face a wholesale repudiation of most existing equality-based precedents. But in areas such as the right to choose, affirmative action, voting rights, campaign finance reform, police abuse, and religion-based exemptions from the legal duty to treat women and gays equally, where a delicate balance must be struck between powerful legal arguments favoring either the autonomy of the strong or the equality of the weak, Republican justices will tend to find plausible legal arguments advancing autonomy more persuasive than equally plausible legal arguments advancing the equality rights of the weak. Democratic justices will dissent. And all nine justices will continue to tell themselves—and everyone else—that they are just applying the law, not making it.

  The bottom line is that Supreme Court protection of autonomy-based rights, like free speech and free exercise of religion, is likely to flourish, while protection of equality-based rights is likely to continue to atrophy. That’s good news for the folks riding in first class, but not so good for the rest of us. Perhaps more important, expecting a deus ex machina called the Bill of Rights or the Supreme Court to drop down from democracy heaven and rescue us from Donald Trump at the head of a populist mob is not merely wishful thinking; it’s downright dangerous because it encourages Americans to rely on someone other than themselves—and something other than the vote—to resist a Trumpist drift toward intolerance, authoritarianism, misogyny, and scapegoating. While judicial review can (and, I hope, will) play a significant short-term role in curbing Trump’s worst impulses, in the end the American people will get the Constitution they want—and deserve. Unless Trump is defeated at the polls, he will remake the Supreme Court in his image, altering the meaning of much of the United States Constitution. FDR did it in 1937. Richard Nixon did it in 1972. Trump could do it in 2020. It turns out that the myth of a timeless, apolitical Constitution that embeds our rights in concrete is just about as accurate as one of Donald Trump’s tweets.

  Here’s why: Judicial review is, at its core, anti-majoritarian. It licenses unelected, life-tenured mandarins called Supreme Court justices to veto the acts of democratically elected officials. Living with democracy-challenged institutions such as the Electoral College, the malapportioned Senate, and the gerrymandered House is bad enough, but how can anyone who genuinely believes in democracy sit still for nine Platonic guardians telling duly elected officials what they are allowed to do?

  To help the anti-democratic medicine go down, we’ve invented a bedtime story. We try to defuse the tension between judicial review and respect for democracy by insisting that when the Supreme Court says no to Congress, elected state officials, or the president, the justices are merely obeying a superior, democratically legitimate command from the Founders. The trouble is that nobody believes that bedtime story anymore. The justices, especially the Republican “originalist” justices, cling to it because it legitimates their power. But the idea that Supreme Court justices engaged in deciding constitutional cases are merely talented archaeologists discovering and enforcing commands from long-dead white men was a self-serving fiction on the day in 1803 that John Marshall invented it in Marbury v. Madison.

  The closest thing we have in the United States to a theater of the absurd is a Supreme Court Senate confirmation hearing, where senators and Supreme Court nominees from both parties fall all over each other pledging allegiance to a cartoon version of judicial review where the justices merely apply law made by the Founders but never make it themselves. It’s a wonder that the Supreme Court nominees’ noses don’t get appreciably longer as the Senate hearing drones on. Every one of them knows better but dares not speak the truth. The raw passions on display during the bitterly contested confirmation hearing on the nomination of Brett Kavanaugh to the Supreme Court raised the curtain a bit on the real stakes of who gets to control the Court, but even then, Justice Kavanaugh insisted—and fifty senators took him at his word—that he would serve as a nonpartisan justice dedicated to applying law, not making it.

  The actual relationship between judicial review and democracy is much more complex than a false dichotomy between making law and applying it. When, as it is in many important cases, the constitutional text is ambiguous and precedent confused, I believe that the justices’ values—especially their relative ranking of the values of autonomy and equality—drive the outcome whether or not the justices admit it, even to themselves. Once such a values-driven Supreme Court case is decided, however, pursuant to a kind of legal alchemy known only to British and American lawyers, the Supreme Court’s initial value-driven decision enters the pantheon of binding judicial precedent, creating the raw material for future apolitical judicial defense of the rights it announces and protects. It’s like weaving nonpolitical gold from value-driven straw.

  In the relatively few cases where the constitutional text is crystal clear, or in the many, many cases where powerful Supreme Court precedent exists, judicial review can—and often does—act as a significant, nonpolitical brake on the ability of the winner of an election to beat up on the losers. The value-driven, partisan heavy lifting in the Supreme Court takes place in the many important cases where the raw material for apolitical judging does not exist. While the Founders did indeed codify our basic individual rights in the 1787 Constitution, the 1791 Bill of Rights, and the post–Civil War equality amendments, the naked constitutional text is almost always maddeningly ambiguous. The hard work of deciphering the precise meaning of a constitutional text in specific settings—“saying what the law is”—falls to fallible human beings who dress in black robes and call themselves judges.

  When the raw material for nonpolitical judging—clear text and binding judicial precedent—just isn’t there, Supreme Court justices must use their values to break constitutional ties. There’s no other way to get the job done. Moreover, because Republicans and Democrats tend to embrace characteristically different value hierarchies, Republican and Democratic justices tend to break constitutional ties in characteristically partisan ways. As I’ve argued, Republican justices tend to be persuaded by plausib
le legal arguments favoring autonomy over equally plausible legal arguments favoring equality. Democratic justices tend to be more receptive to legal arguments favoring equality. Not every justice. Not every time. But enough times to generate a partisan difference that results in two Constitutions—one red, one blue.

  I acknowledge that characterizing constitutional judgments as Republican or Democratic borders on heresy. It comes dangerously close to erasing the important distinction between law and politics. But I have no choice. An honest analysis of the constitutional decision-making process makes it clear (to me, at least, after fifty-five years of immersion in the process) that a justice’s hierarchy of values often plays a determinative role in resolving many constitutional cases. The standard defense of judicial review argues that since all that judges do when they exercise judicial review is carry out commands issued by the Founders, judicial review is perfectly compatible with democracy, even when it sets aside the actions of the electoral majority. That defense of judicial review—endorsed by Justice Scalia, Justice Gorsuch, and now Justice Kavanaugh—turns on an indefensible assumption that the constitutional text conveys a single correct command to a faithful judicial reader, rather than a series of plausible choices.

  The moment that judicial choice enters Supreme Court Eden, it destroys the fiction that the Founders are doing all the work. If, after all, it’s the justices who ultimately get to choose what the constitutional text means, the political heavy lifting is really being done by a non-elected, life-tenured mandarin, not a democratically privileged mythic Founder.

  So the crucial question becomes: “Does the constitutional text convey a command or pose a choice?” In order to harmonize judicial review with democracy, American judges and most academics turn themselves inside out trying to persuade themselves—and everyone else—that the constitutional text conveys a single command from the Founders. But thus far their efforts have all failed. One group of constitutional experts, calling themselves “literalists,” insist that the Constitution’s commands are hiding in plain sight in its 4,543 words. All you really need, they claim, to decipher the Constitution’s one true meaning is a good dictionary (preferably about two hundred years old) and the courage to read the text literally.

  Sometimes the literalists are right. When you want to know how many witnesses are needed to convict someone for treason (two), how old the president must be (at least thirty-five), the president’s required citizenship status (native-born, not naturalized), how many votes each state gets in the Electoral College (one for each of the state’s two senators and one for each representative in the House), or how many electoral votes it takes to elect a president (currently 270), the Constitution’s literal words deliver a single, definitive answer.

  But useful as literalism is in some settings, everyone agrees that the dictionary has its limits. Many of the Constitution’s words and phrases plausibly carry multiple literal meanings, especially the words and phrases used in the Constitution’s rights-bearing provisions. Consider the free speech clause of the First Amendment: “Congress shall make no law … abridging the freedom of speech.” Even if we wanted to, we couldn’t read the free speech clause literally. First, there is the difficulty of reading the phrase “Congress shall make no law” to apply to the president, the military, and every level of state and local government. Second, the seemingly absolute phrase “no law” turns out to be a semantic dead end. The text does not say “no law abridging speech.” That would be easy enough to apply literally, but the text would also protect threats, extortion, and blackmail. Instead, the text says “no law abridging the freedom of speech.” But what exactly is “the freedom of speech”? Like the term “witnesses” in the treason clause, or “native-born” in the presidential qualifications clause, “the freedom of speech” is a legal concept that must be filled in by human readers of the text. There is no definitive dictionary-based road map for the job.

  It only gets harder to impose a single literal meaning on phrases such as the ban on “establishing” religion and the guarantee of “free exercise” of religion in the First Amendment, the prohibition on “unreasonable searches and seizures” in the Fourth Amendment, the guarantee of “due process of law” in the Fifth Amendment, and the prohibition on “cruel and unusual punishment” in the Eighth Amendment. When you add the right to the “equal protection of the laws” in the Fourteenth Amendment and the implied guarantee of equality latent in the Fifth Amendment phrase “due process of law,” to say nothing of the nontextual doctrines of separation of powers and federalism, the idea of a single, literal constitutional command loses all meaning in most important constitutional settings.

  Sophisticated textualists such as Justice Scalia and Justice Gorsuch have conceded that most important constitutional provisions can plausibly be read to mean more than one thing. They argue, though, that constitutional ambiguities can be reduced to a single correct meaning by asking what the Founders originally intended the words to mean. They call their approach “originalism” and claim that it resolves the tension between democracy and judicial review by turning the seemingly ambiguous text into a precise command from the Founders.

  I have real sympathy for Justice Scalia’s lifelong originalist effort to domesticate the Constitution by turning it into a series of externally imposed commands. If he had been able to pull it off, he would have turned judicial review into nothing more than a politically neutral, democratically legitimate enforcement of the Founders’ commands. But, despite a lifetime of intellectually powerful effort, he couldn’t pull it off. First, it’s unclear why we would want to adopt a method of reading the Constitution in the twenty-first century that refers us back to the mind-set of an earlier era in human history when equality had not yet entered the Constitution, slavery was legal, women were excluded from the polity, the franchise was confined to the rich, and the idea of freedoms of speech, press, and political association was so weak that President John Adams locked up many of the newspaper editors who opposed him in the election of 1800.

  Many originalists acknowledge the dangers of looking backward to a constitution bereft of equality but claim that we have no choice if we are to reconcile judicial review and democracy. The democratic legitimacy of the power of an unelected judge to invalidate a congressional or presidential act, they claim, depends upon the existence of a single definitive constitutional command from the Founders capable of binding a reviewing judge. When literalism can’t deliver such a binding command, originalism becomes the textualists’ safety net.

  As we’ve seen, though, it’s not clear that originalists are right in claiming that a constitution with a single command is necessary to the democratic legitimacy of judicial review. I have argued that, as a matter of deferred democracy, not only is the exercise of value-laden legal tiebreaking a necessity in deciding many constitutional cases, it is the most desirable way to harmonize judicial review and democracy because it leaves the ultimate choice of the Constitution’s meaning to the people.

  Nor are originalists necessarily right in arguing that such a backward-looking exercise in legitimation is worth the price of locking the Constitution into an eighteenth-century mind-set. To my mind, the moral disgrace of Dred Scott just wasn’t—and isn’t—worth it.

  Even if you concede both points, though, it turns out that an honest exercise in originalism almost never delivers on its promise to turn the Constitution into a document that can be read only one way. In the first place, it’s a matter of controversy which Founders’ original intent counts—the principal drafters like Madison, the back-bench members of the Philadelphia Constitutional Convention, the 1791 Congress that adopted the Bill of Rights, the members of the various state ratifying conventions, the voters who selected the members of the ratifying conventions, or the late eighteenth-century “general public” (whatever and whoever that means)?

  Over the years, originalists have dallied with each category of definitive reader, abandoning each when the proposed reader became in
tellectually untenable. Current originalists such as Justice Gorsuch ask what an ill-defined slice of the Founders’ generation called the “general public” would have understood the text to mean, without specifying whether the “general public” included women, free blacks, enslaved people, Native Americans, and non-Christians.

  Thus, after more than twenty years of trying to define who the originalist readers are, confusion still reigns. If you don’t know for sure whose original understanding you are looking for, it is virtually impossible to deliver a single right answer about the meaning of the constitutional text.

  Even more troubling, whichever category of Founders you choose to be the definitive originalist readers, it turns out that if you are intellectually honest, it’s clear they were as confused and divided over the meaning of the Constitution’s ambiguous text as we are today.

  You can’t get a more privileged set of Founding insiders than Thomas Jefferson and Alexander Hamilton. Yet they spent most of their time in President Washington’s first cabinet squabbling over how the necessary-and-proper clause affects the scope of Congress’s power to regulate interstate commerce. If Jefferson and Hamilton couldn’t agree on a single correct meaning of the constitutional text even though they participated in the drafting and ratification process and had personal access to the principal drafters, including Madison and John Jay, how can we expect to generate a single, definitive answer to the meaning of the commerce clause more than two hundred years after its adoption?

  The repeated failure of originalism to generate single right answers to the meaning of an ambiguous constitutional text is demonstrated by the sheer volume of Supreme Court opinions, such as the Affordable Care Act case, where the justices divide 5–4 over what the Founding generation intended the Constitution’s text to mean. The Court’s tragicomic performance in District of Columbia v. Heller in 2008 is a particularly revealing example of the failure of history to generate clear answers.