Study Guide #11
The Judiciary
Alexis Tocqueville's famous observation that "there is hardly a political question in the United States that does not sooner or later turn into a judicial one" seems even truer today than when he wrote it. American public policy is distinctively court-centered, though more and more nations are imitating the American system of judicial review, in which courts are granted the power to overturn acts by the other branches of government when those acts are found to contravene a constitutional provision. Still, few nations are likely to empower their courts to reach the breadth and depth of political issues handled by the American legal system.
The central place of courts in American politics raises a question that has haunted legal scholars since even before Tocqueville: How can all this court-based public policy be squared with the American commitment to democracy? After all, federal courts are staffed by lifetime appointees who never have to stand for election. Why should some of the most controversial decisions in American politics over subjects like abortion, affirmative action and gun control, be decided by a group of unrepresentative, unelected judges?
As you ponder this question, consider the four competing visions of democracy introduced at the beginning of this course. Is judicial policymaking compatible with any of them? Is there any way in which we can say that judicial review, for example, contributes to democracy?
We read an excerpt from David O'Brien's Storm Center that examines the Supreme Court's role in American democracy. Vindicating Hamilton's analysis in Federalist Papers #78, O'Brien argues that by itself, the Supreme Court "has no chance to resolve great issues of public policy." When the Court tried to resolve the issue of slavery by concluding, in the infamous case Dred Scott v. Sandford, that slaves were not persons under the Constitution and thus had no constitutional rights, the Court was soon"overruled" by the Civil War. Today Dred v. Scott is remembered as the most shameful of all the Court's decisions, a point noted by Scalia in his wonderfully written dissent in Planned Parenthood v. Casey.
O'Brian emphasizes the limitations of the Supreme Court in making social change, but also claims that "Brown dramatically altered the course of American life." Gerald Rosenberg, in "Substituting Symbol for Substance," couldn't disagree more. The myth that Brown transformed race relations is not only unsupported by the facts, Rosenberg argues, but also pernicious, because it leads liberals and others to look to courts to create social change, a job for which courts are ill-equipped. Do you agree? Does the Massachusetts gay marriage decision support or negate Rosenberg's claims?
We end the judicial section of the course with excerpts from the Supreme Court's latest major ruling on abortion, Planned Parenthood v. Casey (1992), and its Texas laws criminalizing sodomy, Lawrence v. Texas (2003). In Planned Parenthood the Court, by a 5-4 majority, surprised many observers by refusing to overturn the "essential holding" of Roe v. Wade, thus leaving the right to an abortion largely intact. Sandra Day O'Connor, in her opinion for the majority, rested her decision on stare decisis, the rule that the Court should follow precedent cases. Planned Parenthood raises the question of the Court's proper role in American democracy. The dissenters, including Scalia, whose opinion you read, charged that nothing in the Constitution guaranteed a "right to abortion," and that the justices in the majority were improperly using their position to enforce their political beliefs. Is abortion properly a constitutional issue? Why should it be resolved by unelected judges rather than elected legislators?
In Lawrence v. Texas the majority overturned a recent precedent, Bowers v. Hardwick (1986), to strike down a law criminalizing sodomy. Scalia's dissent notes that the same justices so worried about precedent in Planned Parenthood are not so concerned in this case, and once again argues that unelected judges shouldn't make decisions like this one. The majority argues that Bowers was wrongly decided and needs to be overturned. Are Planned Parenthood and Bowers undemocratic decisions?
Scalia expands on his “original meaning” approach to constitutional interpretation in his article “Originalism: The Lesser Evil.” Jack Balkin, a prominent law professor, attacks originalism as a fuzzy theory and originalists as inconsistent in applying their principles. Both sides make claims about the nature of democracy and the American system of government. With whom do you side?
Federalist Papers #78 (Serow & Ladd, 283-287)
1. On what basis does Hamilton argue that the judiciary will always be the "least dangerous" branch?
2. What does Hamilton mean when he says the judiciary has neither "FORCE NOR WILL"?
3. Why does Hamilton think courts should be able to void all governmental acts contrary to the Constitution?
4. How would Hamilton argue against a) an elected judiciary; and b) a judiciary with a set term of office?
O'Brien--Storm Center (Serow & Ladd, 291-296)
1. O'Brien says that Dred Scott v. Sandford and Brown v. Board of Education "illustrate the limitations of Supreme Court policymaking." Why?
2. In what ways did the Court give in to public pressure in its decision in "Brown II"?
3. According to O'Brien, the Court is usually in step with public opinion--but not always. What is an important counterexample? (What is the "switch in time that saved nine"?)
4. Why, according to O'Brien, is it inaccurate to label the Supreme Court an "imperial judiciary"?
Rosenberg, "Substituting Symbol for Substance"
1. When did school desegregation in the South happen? What made it happen according to Rosenberg? Why is Rosenberg so sure that Brown didn't make it happen?
2. Rosenberg claims that Brown might well have delayed desegregation. Why? What evidence does Rosenberg muster for his claim?
3. Why according to Rosenberg is it dangerous for people to mythologize Brown?
O'Connor in Planned Parenthood
1. What law is at issue?
2. From what provision of the Constitution does the right to an abortion arise according to O'Connor? What is "substantive due process"?
3. O'Connor claims that a decision to overturn Roe would not simply ignore stare decisis but would weaken the Court. Why?
Scalia in Planned Parenthood
1. What does Scalia say against the notion that the right to an abortion is a liberty protected by the Constitution?
2. Scalia cites Dred Scott v. Sandford and West Coast Hotel (a case in which the Supreme Court reversed earlier decisions and ruled that minimum wage regulations for women were constitutional) in his dissent. What is the point of these citations?
3. Scalia charges the majority with "Czarist arrogance." Why?
Kennedy in Lawrence v. Texas
1. What state law is involved in this case? What part of the Constitution? (Hint: Like Planned Parenthood, this case is about substantive due process.)
2. Bowers is a 1986 case holding that laws criminalizing sodomy are constitutional. On what basis does Kennedy argue that Bowers was wrongly decided?
3. Kennedy argues that unlike in Planned Parenthood, stare decisis is not a compelling command in this case. Why not?
Scalia in Lawrence v. Texas
1. Scalia notes a contradiction between the Court's handling of this case and its earlier ruling in Planned Parenthood. What is the alleged contradiction?
2. Scalia argues that Texas law doesn't violate the Due Process Clause. Why not? What according to Scalia is the standard for whether a law violates "substantive due process"?
3. Scalia argues that the majority's decision is undemocratic. Why?
4. What does Scalia predict at the end of his decision? (Would Scalia be surprised that the Massachusetts Supreme Judicial Court repeatedly cites Lawrence in its decision holding that restricting gay and lesbian marriage violates the state constitution?)
Scalia, Originalism, the Lesser Evil"
1. Why is originalism a "lesser evil" according to Scalia? What is the greater evil?
2. Scalia acknowledges that he is a “faint-hearted” originalist and doesn’t always use an originalist approach in rendering his opinions. What makes him so “faint-hearted”?
Balkin, "Alive and Kicking"
1. Balkin claims that even Scalia and Thomas, self-proclaimed originalists, in fact believe in a “living Constitution.” What evidence does Balkin muster for this claim? How do you think Scalia would respond?
2. Why isn’t the “original meaning” of the Constitution binding on later generations according to Balkin?
3. If original meaning doesn’t constrain the Court, what does? How is Balkin’s argument here similar to those of Hamilton, Rosenberg and O’Brien?