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Tuesday, June 24, 2014

Purdy on our "anti-democratic court"

Prof. Jed Purdy (Duke) (Go Devils) has a piece at The Daily Beast called "God Save the United States from this Anti-Democratic Court."  (Ann Althouse writes about it, here.)  He asks, among other things, "[s]hould a self-respecting democracy have a Supreme Court like ours, with the power to overturn democratic legislation?"  In response to this question, Purdy observes, "[m]ore and more progressive observers are not so sure."  (But see, e.g., Geoffrey Stone, "Do We Need the Supreme Court," here.)   

It's an important question, for sure, and while I'm at best a faint-hearted and selective Thayerian, I'm sympathic to -- or at least think that I should be -- the answer Jeremy Waldron gave, a few years ago in The Core of the Case Against Judicial Review (That is, "pretty much no.")  The problem with Purdy's piece -- or, perhaps, the problem with me -- is that it is really hard for me to avoid the reaction, "Well, it appears to me that progressive observers, like most of the rest of us, like judicial review when they think courts get the right answer and dislike it when they think courts get the wrong answer.  Justice Breyer, for example, thinks it's really important to defer to legislative judgments, except when state legislatures enact school-choice programs."    Purdy quotes Rob Hunter’s recent conclusion that “judicial interference with democracy” should become “unthinkable," but I guess I'm skeptical that progressives, or Purdy, really want to unthink all "judicial interferences with democracy."  Few Court decisions have been as "anti-democratic" as, say, Roe v. Wade or Engel v. Vitale, but I suspect Erwin Chemerinsky's new book, The Case Against the Supreme Court (which Purdy mentions) will not criticize these rulings.

Don't get me wrong, my hands are not clean here:   I've suggested that the Court should be very deferential and hands off when it comes to the Establishment Clause but also that Hosanna-Tabor was about as right as a Court decision can be.  And, it could be that my snark is unfairly directed at Purdy's piece, since he does say:

For this reason, it’s the rare radical democrat who will denounce the Supreme Court right down the line. Whatever they think of the Court’s other decisions, progressives will generally celebrate without reservation on the all-but-certain day when the Court established marriage equality nationwide. Most Americans think of the Constitution as being ultimately on their side, and identify the Constitution with the Supreme Court. When they agree with the Court’s decision, they tend to think the country has been called back to its best self. When they disagree, they tend to think there has been a regrettable, maybe terrible, mistake.

So . . . what?  Maybe this latest uptick of expressed frustration with the strangeness of a state of things in which the Answers to Big Questions are provided by Justice Kennedy is just a reprise of the popular-constitutionalism conversation, or the inquiry into whether there really is such a thing as "judicial activism" (See, e.g., Kermit Roosevelt's book), or the call for "neutral principles", or the celebration of the "passive virtues", or . . . .  I'm not sure.  I feel confident, though, that few if any of us -- despite what we might wish we could honestly say we want -- really want the Court to be entirely inert or unflinchingly "democratic."

Posted by Rick Garnett on June 24, 2014 at 05:25 PM in Constitutional thoughts, Rick Garnett | Permalink


And, what Tea Party person, e.g., would want to be associated with the word "liberal"? :)

Posted by: Joe | Jun 25, 2014 6:15:23 PM

"Why must it be shortened to one word and the separate meanings conflated?"

It need not be, of course, but it is. Why, is it? I gather many think "liberal democracy" is basically THE right form & cannot quite really fathom that there are other forms. Yes, many are confused how things foreign to our system (seen as "natural" to many) is "democratic."

This leads to confusion, but it's fairly typical. The word "pro-life," e.g., is often used as a totally appropriate contrast to "pro-choice," but the two really aren't opposites.

Posted by: Joe | Jun 25, 2014 6:14:29 PM

We have a perfectly good word for things like separation of church and state, fair notice of penal laws, and free speech -- liberal -- hence liberal democracy. Why must it be shortened to one word and the separate meanings conflated?

That leads to odd circumstances like insisting that the long standing and considered choices of the Turkish people are undemocratic, as if illiberalism could never be freely chosen. Better to acknowledge that it can and be forthright in stating which you prefer when they are in tension.

Posted by: Brad | Jun 25, 2014 12:04:06 AM

What is "democratic legislation"? I'm not sure.

Is a law that is an ex posto facto law, one passed by Congress by large popular margins, "undemocratic"? If so, I think it is okay if the Supreme Court declared it unconstitutional. Our written constitution allows certain "undemocratic" moves if that is what that means.

If you asked many people, they would say it was "democratic" to not favor one religion over another, including by not having official prayers. So, they would not think Engel undemocratic. I have seen this myself. They use the word to mean basic "democratic" principles such as free speech etc. Many people don't use the word simply to mean "what a majority in some fashion passes."

Generally, there are exceptions, people support judicial review that strikes down "democratically" (again, they don't agree exactly what that means) legislation etc. Books are written on the overall principles to follow here. As with "judicial activism," the word is sometimes used as a bland buzz word.

Posted by: Joe | Jun 24, 2014 6:42:38 PM

Completely agree -- the issues are separable. That said, I'd probably still see them as related (we might think that mystification serves the cause of aggressive -- and perhaps excessive -- judicial review and that the temptation to such deployments of judicial review would be reduced if the Court knew that people thought they were not much different than the goof-balls they see talking to empty rooms on CNN!), which probably is part of the reason the issues are (in my view, anyway) "entangled" in this piece.

Posted by: Rick Garnett | Jun 24, 2014 6:28:47 PM

Thanks, Rick. I appreciate it.

And just to be clear: I have no quarrel with your take on Jed's piece. I think you're right, at bottom, that it's hard to avoid the "I like it when it works for me but hate it when it doesn't" undercurrent.

But I do think that Jed's piece combines -- or as you say entangles -- things that needn't be so. The Court can be anti-democratic (or anti-majoritarian, or whatever) without the myth, just as it can be mythical (or whatever) without the anti-democratic results. But the piece mushes all of that together in a way that's not entirely helpful. Or is that not right?

In fairness to Jed, of course, this is a short piece in The Daily Beast of all things. It's not like a Jill Lepore New Yorker article about Clay Christensen -- which, you know, has to abide even the most inane (and convenient) standards of scholarship, right?

Posted by: SparkleMotion | Jun 24, 2014 6:23:55 PM

Yes, you are right that the demystification point is something different but, in this particular piece, I think that point is entangled with the "anti-democratic" claim. (I doubt the specific proposals he mentions would do much on the demystification point, but that is, as you say, another matter.)

Posted by: Rick Garnett | Jun 24, 2014 6:06:03 PM

I don't read Jed as pushing the anti-Court/more-democracy position, as much as identifying the position pushed by others, noting its obvious limits, and offering other solutions (cameras and 18-year terms). I do think it is impossible to separate most criticisms of the Court, and thus of judicial review, from views of particular decisions and their merits.

Is the problem that Roe is anti-democratic or that it was wrong? Is the problem that CU is anti-democratic or that it was wrong? For some reason, no one can keep those issues separate when it comes to the Court.

Posted by: Howard Wasserman | Jun 24, 2014 5:57:19 PM

Interesting post, Rick. I appreciate your take and value your candor.

But I'm not sure that Jed's piece is really all that much about "democracy" in the end. If it were, he might've said something more (or something at all) about the Court as a democratic institution. Other people, both in the law and outside of it, have studied whether or not the Court is detached (vel non) from public preference, but Jed doesn't really go there. Instead he talks smartly and ably about demystifying the Court: opening it up to cameras, implementing Calabresi-and-Lindgren's old 18 year term limit idea (though he credits it to Chemerinsky).

That process of demystification may be a good idea. Or not. But that's really something different, isn't it, than a consideration of the Court's "democratic" virtues and its deference to legislatures?

Posted by: SparkleMotion | Jun 24, 2014 5:46:44 PM

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