Posted on August 14, 2012 at 11:01 am by Michael Seidman
Louis Michael Seidman is the Carmack Waterhouse Professor of Constitutional Law at Georgetown University Law Center. He served as a law clerk for J. Skelly Wright of the D.C. Circuit and U.S. Supreme Court Justice Thurgood Marshall. His most recent book is On Constitutional Disobedience (Oxford, 2012).
At the dawn of the American constitutional tradition, John Marshall wrote in Marbury v. Madison (1803) that “[q]uestions in their nature political . . . can never be made in this court.” He then proceeded to craft a brilliant political document that asserted sweeping power in the guise of self-abnegation and brazenly delegitimized his political opponents while artfully shielding himself from political retribution.
The politics of law
Over two centuries later, another politically adept Chief Justice similarly seized the mantle of restraint and neutrality to advance his political agenda. Imagine how the world looked to John Roberts on the day before the Court decided National Federation of Independent Business v. Sebelius (2012). Recent polling data showed that the number of Americans who have confidence in the Supreme Court had declined significantly and was now below fifty percent. Almost three-fourths of Americans thought that the Justices use political considerations rather than law to decide some cases.
This impression was reinforced by the fact that in most important cases, Justices appointed by Republican presidents are on one side while Justices appointed by Democratic presidents are on the other. The conservatives on the Court handed the election to George Bush in Bush v. Gore (2000) and may well have handed it to Mitt Romney in Citizens United v. FEC (2010) and in Crawford v. Marion County Election Board (2008), the case upholding voter identification laws. We have witnessed the spectacle of Justice Antonin Scalia openly attacking President Obama in a rant delivered from the bench and of President Obama attacking the Court as the Justices sat trapped as ceremonial guests in the well of the House.
And then we have what may well be ahead: The Court’s invalidation of all of affirmative action and Section 5 of the 1965 Voting Rights Act – a centerpiece of the civil rights revolution – by five-to-four votes along familiar Democratic and Republican lines. Faced with this challenge to the Court’s prestige, Roberts could not have been happy with the prospect of the Court striking down a central piece of a President’s domestic agenda for the first time since the New Deal with yet another five-four partisan split.
The health care case
That is the background. What about the case itself? There were certainly reasons why Chief Justice Roberts might have wanted to invalidate the Affordable Care Act: The Commerce Clause argument against the mandate has become a central, defining tenet in conservative legal dogma, and he would not have wanted to be associated with rejection of it. The Spending Clause argument holds the possibility of substantially restricting federal social legislation going forward. He would not have wanted to reject that either. But there were also reasons why upholding the mandate would be attractive. The mandate itself is quite unpopular, but other provisions of the Act are quite popular. Strike down the mandate alone, and Republicans are left in the unenviable position of defending the repeal of the popular provisions. Uphold it, and Romney can run on its unpopularity. Moreover, many experts think that the Act is likely to unravel without any help from the Court. Why not let Obama stew in his own juices?
So how can these positions reconciled? Brilliantly, it turns out. Chief Justice Roberts managed to cast the deciding vote creating the new Commerce, Necessary and Proper, and Spending Clause limitations, but also managed to save the mandate while implicitly (if inaccurately) accusing Obama of breaking his campaign pledge not to raise taxes on the middle class. Moreover, like John Marshall before him, he achieved this political triumph while arguing for judicial restraint and making the Court appear to be above politics.
Enter Professor Bickel
What are we to make of political performances of this sort? Alexander Bickel’s subtle, contradictory, and, I believe, widely misunderstood book provides us with a useful guide. To appreciate Professor Bickel’s views, we must situate them in the world he lived in, just as the opinions written by John Marshall and John Roberts must be situated in their worlds. At the time Bickel wrote, the Warren Court had not yet achieved iconic status, and the outcome of its dramatic intervention in race relations in Brown v. Board of Education (1954) remained very much in doubt. “Massive resistance” was still at its height, the President was not yet firmly committed to a civil rights agenda, and Congress was dominated by southern segregationists.
Faced with uncertain and wavering political support, the Supreme Court had charted a cautious path. Whereas the Brown I opinion was marked by sweeping and powerful rhetoric, Brown II (1955) suggested pragmatism and willingness to compromise. Between Brown II and the publication of Bickel’s The Least Dangerous Branch in 1962, the Court had remained almost entirely silent, seemingly avoiding the conflict that its own opinion had sparked. Indeed, in Naim v. Naim (1955), a case brought to the Court shortly after Brown, the Court went to embarrassing lengths to avoid deciding the constitutionality of a blatantly racist anti-miscegenation law – despite a statute requiring the Court to hear the case – when doing so would have upset white southern sensibilities. To many contemporary observers, the result in Naim seemed completely lawless and unprincipled.
The Court’s behavior during this period produced an intellectual crisis among the liberal legal intelligentsia, still struggling with the legacy of Lochner (1905) and its repudiation. In the immediate wake of Brown, Judge Learned Hand had re-opened the old questions about whether any form of judicial review was legitimate. In a famous response, Professor Herbert Wechsler defended judicial review, but only so long as it was “principled.” At the conclusion of his essay, he raised serious doubts about whether Brown could be defended on a principled basis.
As a young legal academic, Professor Bickel was doubtless caught up in the intellectual misgivings raised by Hand and Wechsler. But he had also clerked for Justice Felix Frankfurter while Brown was being considered and believed that the case had been decided correctly. The project of Bickel’s book, then, was to take into account the arguments that Hand and Wechsler had made, while also defending the Court’s Brown and post-Brown stance.
Delicate dialectical argument
Accomplishing this task required a delicate and complex dialectical argument. On the one hand, judicial review in general and Brown in particular were defensible on the ground that the Court could appropriately protect enduring principles against temporary majoritarian pressure. On the other hand, no society – and certainly no Court – could survive on an exclusive diet of rigid adherence to unwavering principle. It followed that the Court could maintain its principled stance only through unprincipled restrictions on the occasions for declarations of principle. It was crucial for the Court to act in principled fashion as, pace Wechsler, it surely had acted in Brown. But in the real world, the Court could only maintain this principled stance if it paid some attention to politics when it decided whether to decide. Hence, Brown I, Brown II, and Naim had all been rightly decided.
Professor Bickel’s key insight, never fully articulated, was that constitutional law cannot be self-validating. Judges must inevitably make judgments about whether to apply constitutional law. There will be some cases in which the Court should ignore the Constitution for the sake of larger objectives.
Had Bickel’s analysis stopped there, his work would have been truly radical. However, like Marshall before him and Roberts after him, he attempted to mitigate the most destabilizing aspects of this claim by appearing to recognize it only in the context of judicial restraint. Bickel endorsed political judging as only a “passive virtue.” He provided an argument for not acting; not a reason for action.
The real drama of Bickel’s book revolves around this effort to combine purity with pragmatism. Its weakness is perfectly captured by Gerald Gunther’s devastating taunt that Bickel insisted on one-hundred-percent devotion to principle twenty percent of the time. As Gunther powerfully demonstrated in his 1964 Columbia Law Review article, it was difficult to see how the Court could maintain either its reputation for or the reality of apolitical neutrality by engaging in conduct that was concededly political.
Bickel left Gunther’s critique unanswered, and for reasons that are completely understandable: an answer would have required admission that if the passive virtues were to serve their intended function, they could do so only by misleading the country. Bickel must have assumed that the Court could maintain its reputation for apolitical, principled adjudication while still acting politically because the country paid more attention to what the Court decided than to what it chose not to decide. After all, for the parties involved in Naim, the Court’s disingenuous avoidance of the merits had precisely the same impact as a decision upholding the statute. If the two results differed at all, the difference lay in how the alternative dispositions were (or would have been) perceived. A decision upholding the Virginia anti-miscegenation statute would be to legitimate naked racism, whereas a “non-decision,” somehow getting rid of the case on unprincipled and unstated grounds, would not. Bickel and the Court were, in effect, betting on Brown creating banner headlines, while Naim slipped unreported through the news sieve.
The rhetoric of restraint
Bickel’s defense of the Court’s lack of candor inevitably raises questions about his own. Chief Justices Marshall and Roberts used the rhetoric of restraint to advance the cause of judicial power. Did Bickel as well? Perhaps it is true that the Court can better hide its politics when it refuses to decide than when it decides. There may nonetheless be occasions when it can hide its politics well enough even when it decides.
If political necessity is powerful enough, should the Court, on such occasions, abandon its devotion to legal principle when it acts as well as when it fails to act? One thing is certain: If Bickel thought that it should, he would never have told us so. For if, indeed, the Court’s politics must remain secret when they infect its substantive decision making, it would hardly do for the Court’s defenders to spill the beans.
These observations are, of course, speculative, but the speculation is not altogether groundless. Recall that Bickel defended Brown as an example of principled adjudication. So, of course, did all nine Justices of the Supreme Court. Yet we now know from examination of the Justices’ (then) secret conference notes that several of them, including Felix Frankfurter (Bickel’s employer at the time), voted for Brown despite extremely serious reservations about the legal justification for the opinion. Bickel must surely have known about those doubts. Did he share them? If he did, he could hardly have said so publicly. Honesty about the need for dishonesty is, of course, contradictory, but in the context in which Bickel wrote, contradiction was the least of it. With the Supreme Court under attack by bigots and reactionaries, with racial justice on the line, and with the political and moral imperatives as strong as they have been at any time the Court’s history, candor would have amounted to self-indulgent moral cowardice. In the face of all this, could it be that Alexander Bickel was too principled to stand on principle?
Dare we call them heroes?
All of which brings us back to John Marshall and John Roberts. If my interpretation of Bickel is correct, then perhaps both Chief Justices are Bickelian heroes. Both were willing to hide their true goals behind the rhetoric of restraint. Both were deeply principled in their lack of principle in the sense that both were committed to principles that transcend the law and are, by their lights, more important than arid legality.
But are Marshall and Roberts in fact heroes? Once legality and candor are rejected as the criteria for right action, then the measure must instead be based on substantive and controversial moral and political judgments. Because these judgments are controversial – because they are not premised on supposedly trans-substantive legal principles – they cannot be legally justified. I therefore offer my own legally undefended opinion for whatever it is worth. Bickel, if I have him right, sold his legal soul for the sake of racial justice. Marshall and Roberts sold theirs for the protection of an unjust political and economic status quo. That is a very big difference and, in my opinion, the only difference that really matters.