No Law Without Politics (No Politics Without Law)

Jedediah Purdy —

Judge Brett Kavanaugh, now very close to controlling the decisive vote on the Supreme Court, resembles other candidates for high political office. He has a constituency–the Federalist Society, anti-abortion activists, everyone who hopes to see Obamacare weakened and affirmative action ended–and other constituencies in opposition. Lots of MN SUPREME COURT WIKImoney is being raised and spent for and against his confirmation. He has a set of commitments that are plainly at the center of national controversies–over the issues already mentioned, and also over the role in money in politics, the future of criminal justice and environmental, and no doubt a great more that we may not exactly “know” from his judicial record, but which is pretty confidently inferred from his outlook and affiliations. His confirmation, in other words, is a lot like choosing a senator, except that he’ll be much more powerful than almost any individual senator–and never has to answer to voters, now or in the future.

Nonetheless, it has been an article of faith–or at least a relentless rhetorical trope–on both sides of the fight that “politicization” of the judiciary is a kind of corruption and crisis. What distinctive judicial or rule-of-law values draw the line between a court, with or without Judge Kavanaugh, and other aspects of politics? What does it mean to say, as Amy Kapczynski does in her opening post, that courts are political, but not in the same way that politicians are?

Amy’s answer is that courts “morph” politics into “universalizing argument,” giving reasons for their decisions that are supposed to apply to everyone, and that this helps to articulate a picture of a political community that is “ours,” that has a “we.” (She disclaims the thought, implicit in some defenses of courts, that there is anything in legality itself that will produce liberal or left-leaning results: procedure and universalizing efforts at neutrality are not, she tells us, independent of visions of justice or the good society.)

I think we have to look into the abyss and admit the possibility that politics really does come first, that the question is not for or against politicization, but what kind of politicization. My reflections are meant in a spirit of earnest joint inquiry, and of uncertainty. (As I sometimes feel obliged to say on Twitter, tweets do not imply self-endorsement.)

First, I don’t think universalizing argument especially distinguishes judges–particularly in high-stakes issues that intersect with politics, which I suppose is what we’re discussing here. Every presidential candidate’s nomination speech, every new President’s inaugural address, every public argument over legislation (in the Senate or on the op-ed page or on Twitter) is also an argument about principles, goals, and means. They all aim at universalizing in the sense that they express and advance specific normative views of the country–what is a “we” that enough of us can recognize as “ours”? Obamacare, tax bills, climate legislation, all set out these competing visions as vividly as a Supreme Court opinion, and often much more directly, without hanging the question on standing or the spending clause and an obscure notion of coercion. For better or worse, political universalizing speaks at least as directly as judicial reasoning to what we owe one another and why. The reasons generally do not persuade everyone, not by any stretch, and so a vote settles the fight–for the time being, anyway. The vote decides which version of universalized reasons prevails, and those who lose have to live with someone else’s American universalism.

Jeremy Waldron argues in his touchstone case against judicial review that the basic problem of political legitimacy is crystallized in the answer you give to the person who lost a case or other dispute and wants to know why she should go along with the result. Let’s say she knows you have a different view of what universalizing principles require in her case, and she understands that this difference is based on different visions of justice and the good society. She has heard your arguments. And she still disagrees, and thinks you’re wrong. As Waldron points out, at the end of a democratic process you can say something like, “Everyone’s vote counted the same, and your side got fewer votes.” There is at least a minimum principle of equality in that answer. If you’re defending a decision of the Supreme Court, it’s much weaker to say, “Your principled argument lost 5-4.” That is, when a polity is divided over issues of principles, which happens all the time–partly because politics universalizes interests into principles, much as law does–the fact that the judges who decided the case might have given more painstaking reasons than politicians or voters would have done does not make the judges’ resolution more satisfactory.

So, when we worry about the politicization of the courts, what are we actually worrying about? I think the basic worry is not generally the failure to give reasons or to universalize, for they do plenty of that. It is the courts’ making key policy decisions, especially on the basis of contested constitutional interpretation, without legitimate authority to do so. But this is a very unsatisfactory, in fact circular, formulation, because partisans always argue over the bases of legitimate authority–recently in terms of federalism versus nationalism or living constitutionalism versus originalism, and in other terms at other times. And as David Grewal and I recently argued, there is no royal road (republican road?) to constitutional legitimacy in the U.S., because the basic idea of constitutional legitimacy is that a piece of higher law both was adopted by a valid (super-) majority at the time it became law and is still regarded as appropriate higher law by the present generation that lives under it. Because the U.S. Constitution is old and hard to amend, we cannot really say both things about any important application of it. Originalists are always partly right that living constitutionalists are substituting judicial discretion for popular will, and living constitutionalists are always partly right that originalists are subordinating popular will to the dead hand of a long-gone polity. Most constitutional theory and much jurisprudence are efforts to overcome this dilemma; but the circle will not be squared. Claims of bad faith and opportunism are inevitable because no theory can rationalize our constitutional system.

So I’m inclined to say that any version of what it means for courts to be non-political must come–in a superficial paradox that arises from deeper dilemmas–from politics. And of course, it will be always contested. There was a certain range of accounts of what a non-political court should do that prevailed in the early twentieth century, in the interregnum struggle between Gilded Age laissez-faire and Progressive reform. When the New Deal context broke the laissez-faire approach, the whole thing shifted toward a nationalist and statist reformulation of constitutionalist. That was shaken again by the egalitarianism and civil libertarianism of the Warren Court in conjunction with the Civil Rights Movement and the Great Society humanism of the 1960s (probably much more important to civil libertarian ideas than the counter-culture). And we are living through a long interregnum and partially successful reinstatement of a laissez-faire and (I would say) anti-egalitarian jurisprudence that many of us have documented. At any point in this story, certain versions of what it means for a court to act legitimately are on the table, and others are not.

Sometimes, charges of politicization are the inevitable side-effects of interregnum struggles. At other times (often enough hard to distinguish) they are objections to the capture of the courts by a particular strand the legal-political elite. This fight for capture is inflected by the fact that the Supreme Court is in practice reserved not just to members of one profession, but to graduates of two (sometimes three) professional schools. The constitutional status of Yale, Harvard, and the LSAT is, to put it mildly, undertheorized, because it does not lend itself to any very palatable theory of legality. All political challenges to the courts are likely to note that Article III, particularly at its apex, is a House of Lords for the partisan meritocracy.

 

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I am not sure anything in this conversation will help to address economist Dani Rodrik’s important prompt for this conversation–where does the “law is politics” position leave anyone in relation to the attacks on the judiciary in Hungary, Poland, Turkey, etc? A court or constitution cannot save a country from itself for very long, even under the very best circumstances. As Judge Learned Hand famously put it, “a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.” It is a fortiori true that no one society’s approach to its courts can save or doom another. So these reflections will be squarely American, a parochialism that is pretty typical in law, especially constitutional law, although it is regrettable.

It is worth pausing for a moment, though, to notice two things about Rodrik’s question. First, a certain interpretation of the Trump Administration in the U.S. has linked it to global “populism” and a theory of how democracies become authoritarian that reinforce the American habit of assuming that our arguments, however parochial the terms in which we hold them, have obviously universal significance. If Americans say “law is politics,” that must bear on the fate of Turkish democracy. We are all in the same stream of historical events, with the same sorts of stakes. I don’t say that this is wrong, just that it is a picture with a considerable grip on the liberal imagination right now.

Second, in recent decades courts have played a vanguard role in the globalization of substantively liberal ideals, notably in the Indian Supreme Court’s recent invalidation of a colonial-era law criminalizing same-sex intimacy. I have found in classroom discussions with students that this aspect of judicial review is extremely important to their commitment to it. When pressed with standard arguments against resolving deep political disagreement with contested judicial interpretation, they tend to fall back on a keenly felt, “But if the courts won’t protect vulnerable populations abroad from political majorities, who will?” This is anecdotal, of course, but I think many readers will recognize the humanitarian impulse.

So courts occupy a special place in today’s liberalism, particularly internationally minded legal liberalism, and at the present political juncture threats to courts can feel especially grave and consequential. The fate of the rule of law feels intimately linked to a widely shared crisis. And it may well be. But we should be closely attentive to differences among national settings, especially in the moment when generalization leaps to mind.

 

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In the U.S., at least, concern over political attacks on the courts should be tempered by awareness of how integral challenges to the courts have been to reconstituting their legitimacy in new forms. Although not always successful, the challenges go back to the very beginning. In 1805, Chief Justice John Marshall, whose partisan Federalist colleague Samuel Chase was facing impeachment by Jeffersonians, wrote Chase a letter proposing “appellate jurisdiction in the legislature”–i.e., letting Congress reverse the Supreme Court. Marshall had recently established the practice of constitutional review in the famous Marbury v. Madison (1803). Here he was willing to walk back judicial supremacy itself in the face of political opposition. Such renegotiations have been regular occurrences. Lincoln, addressing the Dred Scott opinion in his inaugural (& facing Justice Taney, who had written it & had sworn him in,” said that if the decision settled the matter, “the people will have ceased to be their own rulers.” Lincoln appointed Salmon Chase as Chief Justice chief because “we wish for a Chief Justice who will sustain what has been done in regard to emancipation and the legal tenders.” In 1863, the Court’s numbers went up to 10, securing support for Lincoln’s policies.

It’s not just in time of war or founding tumult. In 1924, the great Progressive Sen. R. La Follette (WI) proposed a constitutional amendment authorizing Congressional override of Supreme Court opinions striking down statutes. Future Justice Felix Frankfurter defended the spirit of the proposal (it was not his style to tie himself down to someone else’s specifics), approvingly recalling Teddy Roosevelt’s earlier Progressive attack on laissez-faire courts: “I may not know much about law, but I do know one can put the fear of God into judges.” Frankfurter went on, “The ‘fear of God’ was needed to make itself felt on the bench in 1912. The ‘fear of God’ very much needs to make itself felt in 1924… [in the Lochner period] we have never had a more irresponsible … [Supreme] court.”

That is, there wasn’t just “a New Deal crisis”: There were crises all down the line as reformers struggled against the Court, and they were intermittently expressed by proposals to reform the judiciary itself, as well as other forms of political pressure. We know of course about FDR’s “court packing” plan. It’s sometimes downplayed that he was very explicit about the stakes (despite a little legerdemain about helping the poor judges get their work done by adding younger colleagues). Discussing the plan in his radio address of 3/9/1937, he said, “there is no basis for the claim made by some members of the Court that something in the Constitution has compelled them regretfully to thwart the will of the people.” It was necessary, he argued, to change the Court “to save the Constitution from the Court”–save it as a document of democratic self-rule.

The stakes could not have been clearer.  Less than a month earlier, an amendment was introduced in both houses permitting a Congressional override of decisions invalidating statutes–the same measure Marshall had been willing to accept and La Follette had advanced with Frankfurter’s cautious support. Robert Jackson (such a rule-of-law man that he was not long after the prosecutor at Nuremberg) vigorously defended Roosevelt in a book published the year he went on the Court.

In short, when we talk about the Court and crises of legitimacy, we need to appreciate that there is a long tradition, including among candid justices and lawyers who are very serious about the law, of challenging the metes & bounds of the Supreme Court’s power to say what the Constitution means. This has always been partisan but also involved fights over principle, and it has been a fight among people who believe in law, constitutionality, and adjudication. As it is today.

I’ve recently argued that the way to address politicization–in the sense of conservative dominance of the courts–is not de-politicization but counter-politicization, which I think is the lesson of history. I’ve argued for a jurisprudence that picks up new politically led awareness of the absolute importance of ballot access, the centrality of economic power to law and social order, and the urgency of addressing structural racialized inequality, the carceral state, and the special vulnerability of non-citizens. Stated abstractly, what such a jurisprudence would do is to generalize throughout the legal system a certain version of what liberty, equality, and democratic self-rule should amount to, enforcing these as the ground rules of politics (voting) and in protecting political minorities and the disenfranchised whose core interests are often trampled. This is a specific version of what all jurisprudence does–enforce ground rules, generalize core principles across the system, and attend specially to those who may lose out in other processes. Whether those ground rules are more democracy or more federalism, whether the principles are sensitive or blind to economic power, whether the marginalized constituencies are pharmaceutical companies or the undocumented are questions of substance that only a political fight over the meaning of law can fill in and make stick.

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I’d like to note in conclusion that there is a whole side of the argument that is hardly glimpsed here. The idea of law as a brake on arbitrary power, a way of making our claims on one another (and the state’s claims on us) more predictable and less harsh, a systemic means of promoting fair treatment, is awfully powerful. Although it has been associated with explicitly anti-political positions like Friedrich Hayek’s, in which “law” is the opposite of legislation and exists to secure private economic expectations, this idea of fairness is also powerfully connected with an ideal of democratic citizenship. To have standing in a political community should mean that you are not subject to legalized arbitrary power, whether by the police or by an employer. It is a tragedy of American left-liberalism that this idea has less traction than it should as a progressive ideal precisely because there is so much arbitrary exercise of legal power, and so unevenly distributed, that it is easy and understandable to think of rule of law as an elite conceit. If you believe in democratic citizenship in a complex society, you need to be for investment in a legal system that provides ample public defense, adequate courts, a humane and expeditious process for people accused of crimes, and responsive and accountable policing. The best allies of the rule of law today are the activists and citizens who have elected progressive, reformist prosecutors in places like Durham, where I live, and Philadelphia. But they need more resources and political support, at all levels.

And the idea that good judges do something special–particularly when they are not deciding questions that should be political, what Sam Moyn calls high-stakes litigation–is important. There is unavoidably a lot of discretionary power in a legal order. Unless we are going to turn everything over to algorithms–and who will watch those watchers?–someone has to make decisions in every wrongful-firing suit and prosecution and zoning board appeal. A lot of that discretion is in the hands of judges. The ethics of fairness, listening, non-favoritism, that most judges take very seriously, is absolutely necessary to disciplining this power. The thought that judges would decide a criminal case based on the politics of the defendant is terrifying. (This is why evidence that racial and class differences make a systemic difference in criminal justice is, well, terrifying, and potentially delegitimating.)

Right now, the spurious normcore idea that courts could ever be non-political in high-stakes matters is, ironically, eroding the very important normcore ideal that courts should be resolutely judicious in everyday activity. Of course small-scale and invisible judicial processes have their politics, too, as Sam points out, but they are different, and they can support as well as erode a low-built and real rule-of-law practice. The inevitable politicization of high-court conflicts invites, among those who disapprove of it, the anxious sense that other levels and domains of legal practice have to move in concert with high-stakes public litigation; but they need not. Of course, securing stronger rule-of-law values in the everyday life of the law, where it touches most people’s lives, requires a politics too. Politics can be, in the best sense, pro-law, as well as pro-democracy. There is no legal shortcut to building that politics, although it can only succeed through the use of law, and there are many ways that law can undercut it.

 

Jedediah Purdy is the Robinson O. Everett Professor of Law at Duke Law School.