The Most Dangerous Branch

Years ago, in the brief legal heyday of constitutional liberalism, the best expression of the conservative critique of the early Warren Court was posed by Alexander Bickel in his The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962). Bickel, like Learned Hand before him, questioned the legitimacy of judicial review of statutes on the ground of conformity to the Constitution, and described the "counter-majoritarian difficulty" posed by judicial review--that is, a small group of unelected judges striking down the work of democratically elected representatives is inherently a curb on democracy, and can, where the judges do not carefully limit themselves to actual enforcement of the constitutional limits on legislation, undermine democracy.

Note the caveat: Where the judges do not carefully limit themselves to actual enforcement of the Constitutional text.

Notably, Bickel published The Least Dangerous Branch eight years after the Court issued its decision in Brown v. Board of Education, and in the midst of "massive resistance" by the states to the decision (for the definitive account, see Richard Kluger's Simple Justice. So conservative opposition to judicial review really crystallized around a decision that clearly enforced a constitutional provision: Brown held that legally mandated racially segregated education violated the Fourteenth Amendment's Equal Protection Clause, providing that "No state shall...deny to any person within its jurisdiction the equal protection of the laws." It's hard to imagine any paradigm of judicial review in which Brown is wrongly decided.

Still, deference to the elected representatives of the people became the hallmark of conservative legal thought from Bickel to Bork, and Scalia.

Until, of course, it didn't. There were harbingers of conservative legal activism--the Rehnquist Court's "New Federalism" constructed a non-textual residuum of power to the States and called it a part of the federal constitution, to take the greatest pre-Bush v. Gore example. Also, the Rehnquist Court's habeas corpus decisions created a new common law doctrine called by it "abuse of the writ" and steadily whittled away at the availability of the Great Writ, to the point where it more resembles the little writ. But before Bush v. Gore, these inroads of conservative activism purported to be consistent with the judicial modesty owed the democratically elected branches.

In the Roberts Court era, though we have seen a steadily emboldened partisan majority embrace judicial activism in a startling, increasingly overt way; as I have previously pointed out, it started modestly:

A minor but salient example that I've pointed out before, in Bell Atlantic Company v. Twombly, the Court in an opinion Scalia joined overturned 50 years of unbroken precedent interpreting the Federal Rules of Civil Procedure consistent with Congress's expressed policy that pleadings be liberally construed to create a brand new, tougher standard that made it easier for defendants to get courts to dismiss cases. The statute hadn't been amended, Congress had not changed the declaration of policy, even; the Court just didn't like the result.

Since then, we have seen the Court water down the Fourth Amendment based on a rationale that is patently not even believed by the majority relying on it, re-interpret statutes to allow big corporations to opt out of federal regulatory statutes by thwarting enforcement, and, finally, gut the Voting Rights Act of 1965, and doing it in such a way that the majority can be said to have effectively repealed the Fifteenth Amendment.

Yes, you read that correctly. As I've been living with the case, my outrage at its reasoning has actually overtaken and surpassed my outrage at the Court's conclusion, because it effectively stripped Congress of the deference due it in exercising a power explicitly granted it by the Fifteenth Amendment. In a stunning reversal of ordinary canons of construction, the Court narrowed the Fifteenth Amendment to preserve the balance of power between the Federal and State governments it found implicit in the Tenth Amendment, and elevated this wholly made up notion of "equal sovereignty" to impose a intermediate scrutiny on the VRA, a standard of review like that applicable to a governmental action which arguably infringes a constitutional provision, not the far more deferential review accorded to an action taken pursuant to a specific enumerated power:

More specifically, “ ‘the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.’ ” Gregory v. Ashcroft, 501 U. S. 452–462 (1991) (quoting Sugarman v. Dougall, 413 U. S. 634, 647 (1973) ; some internal quotation marks omitted). Of course, the Federal Government retains significant control over federal elections.
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Not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States. Northwest Austin, supra, at 203 (citing United States v. Louisiana, 363 U. S. 1, 16 (1960) ; Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845); and Texas v. White, 7 Wall. 700, 725–726 (1869); emphasis added). Over a hundred years ago, this Court explained that our Nation “was and is a union of States, equal in power, dignity and authority.” Coyle v. Smith, 221 U. S. 559, 567 (1911) . Indeed, “the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.” Id., at 580

By treating the VRA as inherently suspect, the majority effectively stripped it of its status as an act of Congress undertaken pursuant to a specifically enumerated power. The majority has effectively deleted section 2 of the Fifteenth Amendment from the Constitution by treating a statute passed under its authorization as presumptively unconstitutional.

But don't take it from me; here's a troika of conservatives of the Bickel school:

Although the decision was hailed by many political conservatives, its reviews from academic and judicial conservatives were considerably less admiring.

Harvard Law professor Charles Fried, a former state Supreme Court justice who served as the Reagan administration's advocate in the Supreme Court, thought the court's decision was just wrong.

"Because we're not there yet," he says. "We're not there yet, and the facts on the ground in Shelby County itself showed that."

Stanford's [Michael] McConnell says the decision's reasoning is just "made up."

"There's no requirement in the Constitution to treat all states the same," he said. "It might be an attractive principle, but it doesn't seem to be in the Constitution."

John McGinnis of Northwestern University Law School agrees, suggesting that the court's conservatives let their own policy disagreements with Congress trump the clear meaning of the Constitution and the post Civil War amendments.

"I'm sorry to say I think this opinion was as singular a failure as I've seen in the history of the Supreme Court," McGinnis said at a recent judicial conference.

We may be nearing the point where Judge Janice Rogers Brown's appalling paean of praise to unlimited conservative judicial subjectivism, titled, appropriately enough "A Whiter Shade of Pale") becomes the dominant view on the Supreme Court.