October 24, 2004
'The People Themselves': Judicial Populism
By LAURENCE H. TRIBE, commenting on:

THE PEOPLE THEMSELVES
Popular Constitutionalism and Judicial Review.
By Larry D. Kramer.
363 pp. Oxford University Press. $29.95.

LINK

WHENEVER a handful of life-tenured and unelected Supreme Court justices overrides a political majority, such an act of judicial review is bound to generate sparks. Whether ''liberal'' or ''conservative,'' the court's critics typically argue that the justices either got it wrong (as in: ''affirmative action forgets two wrongs don't make a right'') or overstepped their authority (as in: ''states can decide for themselves how to treat same-sex relationships'').

Sometimes, the assault is mounted on judicial review itself. Attacks like these used to come mostly from conservative quarters: in fierce resistance to ''judicial supremacy'' when the court outlawed segregation; in the cries of ''Impeach Earl Warren!'' as the court put procedural handcuffs on once-routine police abuses; and in denunciations of ''judicial activism,'' when the court began protecting reproductive freedom.

Today, though, the Supreme Court comes under attack mostly from the left. As right-leaning as the Warren court was liberal, the Rehnquist court has seemed almost eager to invalidate acts of Congress involving everything from restrictions on guns near schools to remedies for age and disability discrimination. Most of the Rehnquist court's critics have condemned its particular brand of judicial activism, including its return to narrow views of federal legislative power rejected decades ago, while continuing to support judicial review in principle. But now, some legal scholars who consider themselves progressives -- apparently finding it too complicated to attack the court's right-wing rulings while defending liberal icons like the desegregation, reapportionment and sex discrimination decisions of the Warren and Burger years -- are challenging the court's very authority to decide such questions, urging that decision making on constitutional issues be returned to the political branches or, better still, to ''The People Themselves,'' the title of a provocative new book by Stanford Law School's new dean, Larry D. Kramer.

The book's erudition and historical grounding -- its parade of endnotes citing a plenitude of secondary sources -- cannot hide its author's mission: to support the new court-bashers by equating respect for the court's distinctive role with an imaginary belief on the part of ordinary people that ''the meaning of their Constitution is something beyond their compass, something that should be left to others.'' The world according to Kramer is one in which ''we the people'' not only shared in construing the Constitution but also rendered the final verdict on its meaning -- until ''sometime in the past generation or so,'' when we were tricked into losing our constitutional voice and submitting meekly to judicial imperialism.

But the trick is Kramer's. He pulls it off by switching definitions on his readers (and maybe on himself). Looking back at the period he idealizes, Kramer defines ''popular constitutionalism'' as the belief that the court's views of the Constitution should enter into the national conversation but should remain subject to contradiction and eventual rejection. Fair enough. Looking at our time, however, Kramer defines popular constitutionalism as the belief that no one except the parties before the court should feel any obligation to obey its rulings. So, for example, if the court invalidates all use of a key set of federal sentencing guidelines this year, prosecutors and judges should feel free to use those guidelines in similar cases next year. And there, of course, is the rub.

Kramer's history begins before the Revolutionary War, at a time when people who accused government authorities of acting contrary to the ''constitution'' understood themselves to be appealing to a binding ''higher law,'' pleading their cases not to judges but to juries, colonial legislatures and governors, and the king and Parliament.

This misty ideal of a ''constitutional law'' burdened neither by the esoteric apparatus of the lawyer's craft nor by the text of the 1789 Constitution is Kramer's Eden; today's ''judicial supremacy'' is Kramer's vision of exile from the Garden. He lingers lovingly over the watershed triumph, in the presidential election of 1800, of Thomas Jefferson and his Democratic-Republicans over aristocratic Federalists like John Adams, who would have entrusted the Constitution to the Supreme Court. For Kramer, that primordial contest presaged Andrew Jackson's defeat of the Second National Bank in 1832, a triumph for democracy later vindicated in the soaring rhetoric and unassailable reasoning of Lincoln's first inaugural address, challenging the court's 1857 holding in the Dred Scott case that Congress lacked authority to contain the spread of slavery and give slaves the legal means to win their freedom. And except for a few brushstrokes -- just 12 pages in a 363-page book -- and some concluding flourishes, Kramer's account of the history is just about done.

Kramer's picture of popular constitutionalism from the founding to the mid-20th century is as misleading as it is foreshortened. His bird's-eye view of how ''the people,'' whom he personifies in Lincoln, overcame the abomination of Dred Scott is typical. One is left with the impression that, when Lincoln said the Dred Scott decision could not ''irrevocably'' fix the policy of the government ''upon vital questions, affecting the whole people,'' he was counseling defiance of the court's decree. He was not. It was the broad question of slavery he was discussing. And on that vital question, the Constitution's meaning was indeed ''fixed,'' as Lincoln foresaw it would be -- but through the upheaval of his Emancipation Proclamation in 1863, his re-election in 1864, the bloodshed of war, the Union's victory and the adoption of three constitutional amendments (the 13th, 14th and 15th) that the Confederate states were compelled to ratify.

In Kramer's other examples, too, the Constitution's meaning was settled, sometimes more enduringly than others, not overnight by judicial decree but over the stretch of time, through the struggle of ballots cast and blood shed, of minds changed and hearts won. Only by collapsing years or even decades into a single point can Kramer depict a landscape in which, once upon a time, ''the people themselves'' decided which court decrees to accept as part of their history and which to discard. The people's mythic ability to signal the justices that ''there is a higher authority out there with power to overthrow their decisions'' never operated as the quick fix he advocates.

A quick fix is what Kramer finds lacking in the usual ways ''the people'' can make themselves heard on constitutional questions. Too slow and indirect for him are efforts to change what the justices think through litigation, or who the justices are through the election of presidents and senators who share ''the people's'' values. A president can refuse to sign any law he thinks unconstitutional. A president can also issue pardons, as Jefferson did with those his predecessor had successfully prosecuted under the Alien and Sedition Acts -- though that device is obviously of limited utility, as is the deliberately difficult process of amending the Constitution to overcome unpopular judicial interpretations.

Curiously missing from Kramer's catalog of options is the unique power that Congress is given by several post-Civil War amendments, to enforce their provisions ''by appropriate legislation.'' To take a contemporary example, after the Supreme Court held that states may freely ignore even the devastating impact on religion that generally valid rules sometimes unintentionally cause -- the case at issue was a drug law that had the effect of penalizing the sacramental use of peyote in a harmless Native American ritual -- Congress responded with legislation requiring the states either to exempt religious acts or demonstrate why their exemption would cause grave harm. The Supreme Court invalidated the statute, relying heavily on the remarkable claim that its power to say what the Constitution means automatically trumps any competing interpretive authority. Kramer might have condemned that hegemonic claim as ''judicial triumphalism'' -- and indeed should have. Instead, he proceeds as if judicial review inherently stifles all contradiction. In truth, however, judicial review presupposes only that the Supreme Court is duty-bound to enforce the Constitution as the supreme law of the land. In a system governed ''by laws, not men,'' the constitutional interpretations the court adopts in the course of resolving disputes deserve respect. Thus the principles the Supreme Court laid down in its 1954 desegregation decisions must be followed -- not just by the immediate parties to the lawsuit culminating in the Brown decision, but by every school board in the land.

Having pulled the linguistic trick of equating judicial review with a judicial monopoly over constitutional truth, Kramer is ready to break up that monopoly with remedies far more disquieting than just urging Congress to confront the court more forcefully over matters like religious freedom.

Steeling himself for the frontal assault, Kramer casually proclaims his hostility to the most celebrated work of the Warren and Burger courts. Of the former he writes that its ''few genuine contributions (like Brown) may have been exaggerated'' anyway -- and of the latter he says one can hardly lament the chastening of a court that ''fabricated the law of sex equality'' and ''invented a right to abortion.''

These are not arguments. They are rhetorical drive-by shootings. And when Kramer explains how he would have the people ''take back'' their constitutional birthright, it's not surprising that he views wistfully ''outright defiance'' of the court's contentious decisions, ''like those on abortion and school prayer.'' With such praise from a law school dean for what can only be labeled lawless conduct, it seems anticlimactic when Kramer rounds out his platform by urging those who disagree with the court's rulings to consider starving it of the money it needs to function; stripping it of jurisdiction over sensitive topics; shrinking its size or packing it with new members (as Franklin Roosevelt tried to do in the mid-1930's); and, yes, even impeaching justices whose opinions incur popular disapproval.

We'll ''almost never'' need actually to use these tools, Kramer writes, because a ''risk-averse'' court ''adjusts its behavior'' to the views of ''political leadership in the other branches.'' Acknowledging how chilling ''most lawyers and legal scholars (not to mention judges)'' find the mere mention of such proposals, Kramer brushes their fears aside as elitist and out of sync with American history. But as proof that he is proposing no more than what ''earlier generations of Americans'' did, Kramer invokes only manifestly inapposite episodes like the election of Jefferson, the overturning of Dred Scott and Franklin Roosevelt's successful nominations of justices with more progressive philosophies following his failed attempt at court-packing.

Once we see that ''the people'' have not in fact recently handed over to ''a judicial oligarchy'' -- or even to a judicial system less pejoratively labeled -- any power they ever wielded over the courts, Kramer's thesis collapses. If the people, viewed collectively, ever exercised authority as a court of last resort, they did so only in a metaphorical sense. The people as a polity have indeed had the last word on general constitutional principles in the long run -- a final word that has emerged sharply through momentous elections and wars and softly through signals that the zeitgeist, to which no judge can be wholly immune, is changing. But the people have never lost that ''last word.'' And the influence over individual decisions that Kramer would give them is a last word they have never had and could never be permitted to assert without taking the law out of constitutional law.

Worse, Kramer's popular constitutionalism would yield a constitutional law from which even the Constitution had been erased. For if constitutional law were but a vessel into which the people could pour whatever they wanted it to contain at any given moment, wouldn't the whole point of framing a constitution have been lost? A constitution announces the ''promises to keep'' that define who we are. ''The people'' whose promises a written constitution makes cannot be frozen in a snapshot -- much less a snapshot taken today. Larry Kramer may believe that ''slogans like 'the tyranny of the majority' are just that: slogans,'' but no society that binds itself to a constitution can be that naive.

In succumbing to the trendy siren song of those who would have the fleeting ''constitutional'' sentiments of a temporarily controlling faction bring the court to heel, Larry Kramer risks playing Pied Piper to a large and potentially impressionable universe of readers and students. Meanwhile, he sadly misses the whole point of Chief Justice Marshall's great reminder: It is ''a constitution we are expounding.''


Laurence H. Tribe is a professor of constitutional law at Harvard University and the Carl M. Loeb University Professor.