The Value of 'Activism'
Debate about the role of judges in American governance is a hardy perennial, arising from the tension between one result of judicial review -- the invalidation of laws enacted by elected representatives -- and popular government. This is what the late Alexander Bickel of Yale Law School called the "countermajoritarian difficulty." But it should not be an agonizing difficulty for conservatives, who should cast a cool eye on any sentimental celebration of unchecked majorities.
Today the debate is colored by the fact that the more conservative party controls the presidency and both houses of Congress. Convinced that popular sentiment is with them, some conservatives fan the flames of resentment of judicial review, calling for judicial "restraint." They do so in the name of dogmatic majoritarianism -- the right of majorities to have their way. There are, however, impeccably conservative reasons for regarding judicial review as a valuable restraint on majorities, and hence for having high regard for some judicial activism.
The conservatives' party, the Republican Party, was born in reaction against repeal of the Missouri Compromise -- against, that is, the right, established by Congress in 1854, of Kansans to own slaves if a Kansas majority approved of that. The first Republican president was propelled to greatness by his recoil against allowing popular sovereignty to decide whether slavery should expand into particular territories.
Lincoln's greatness was inseparable from his belief that there are some things that majorities should not be permitted to do -- things that violate natural rights, the protection of which is the Constitution's principal purpose. As Chief Justice John Marshall said in Mar bury v. Madison , the theoretical foundation of judicial review, "The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written."
In their book "Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations," Daniel Farber and Suzanna Sherry of the Berkeley and Vanderbilt law schools, respectively, note that judicial review amounts to blocking a contemporary majority in the name of a past majority -- the one that produced the Constitution through democratic ratification conventions. Americans rightly regard this as an especially dignified majority -- one owed special deference because it was the product of an unusually deliberative moment, the founding.
Furthermore, Farber and Sherry note that in America's system of governance, majority rule is not limited only by courts. There are, for example, vast powers vested in institutions such as the Federal Reserve. Technically, the Federal Reserve is a creature of Congress; actually, its primary function is to insulate very technical and consequential decisions from gusts of popular opinion.
As Farber and Sherry say, most Americans are much more affected by what the Federal Reserve influences -- prosperity; protecting the currency as a store of value by controlling inflation -- than by anything the Supreme Court says about flag burning as free speech or Christmas displays as the establishment of religion. But as James Madison, the foremost Framer, said, "There can be no doubt that there are subjects to which the capacities of the bulk of mankind are unequal."
Ardent majoritarians may be scandalized by the fact that 51 senators from the least populous states, representing just 17 percent of the nation's population, could defeat a bill. But the Senate, which the Constitution's Framers did not intend to be popularly elected, was, said Madison, supposed "to protect the people against the transient impressions into which they themselves might be led." The more purely democratic House does not even participate in such momentous decisions as the confirmation of judges or ratification of treaties.
Although properly modest judges seek to minimize it, there are, inescapably, policymaking dimensions of, or consequences from, what these unelected officials do. But as Farber and Sherry say, judges are chosen by a process -- nominated by elected presidents, confirmed by elected senators -- grounded in democratic accountability. And there is another problem with "obsessing about the countermajoritarian nature of the court'':
"Judges are only part of the governance system; they are not our rulers. To assume that the whole system can be legitimate only if each part would be legitimate standing alone is to commit what economists call the 'fallacy of composition.' "
Finally, since Thomas Jefferson, no significant politician has flatly opposed judicial review. Even when the Supreme Court was most athwart public opinion -- striking down New Deal legislation -- voters sharply rebuked President Franklin Roosevelt for his plan to "pack" the court by enlarging it. So this is another powerful argument for the compatibility of judicial review with America's democratic values: the demos -- the public -- supports it.