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The Court as a Political Body

Published: November 1, 1999

Legal Times, Novem­ber 1, 1999

The Court as a Polit­ical Body

By Mark Kozlowski

Peter Irons, who currently teaches polit­ical science at the Univer­sity of Cali­for­nia, San Diego, has had a laud­able career as a civil rights attor­ney and as a chron­icler of civil rights struggles. Most notably, he served as plaintiffs’ coun­sel in a series of lawsuits seek­ing damages for those who suffered under the U.S. govern­ment’s policy of intern­ing Japan­ese-Amer­ic­ans during World War II. He produced an excel­lent book about that policy, Justice at War.

Irons has now writ­ten A People’s History of the Supreme Court. I am not sure what the proper scope of “a people’s history” should be, but Irons himself explains that his new book is “not designed to be encyc­lo­pedic or exhaust­ive in cover­age, but to illus­trate the connec­tions of law and polit­ics in areas of civil rights and liber­ties.” The results, it must be said, are greatly disap­point­ing.

The book is not without its good points. When he is setting forth the facts of cases, Irons’ writ­ing can be stir­ring. He is partic­u­larly adept at recount­ing dramatic moments in oral argu­ments before the Court, such as Earl Warren’s outrage when an attor­ney repres­ent­ing Arkan­sas sugges­ted that Little Rock could disreg­ard the Court’s order that city schools be deseg­reg­ated because Governor Orval Faubus had declared that “a United States Supreme Court decision is not the law of the land.” Irons’ summary biograph­ies of numer­ous litig­ants of obscure and humble circum­stances whose cases changed the course of Amer­ican law are also consist­ently enga­ging.

Among the book’s lesser prob­lems is that it is simply too long. Prime candid­ates for excision should have been Irons’ play-by-play cover­age of the Consti­tu­tional Conven­tion of 1787, little of which is relev­ant to the history of the Supreme Court, and Irons’ decision to provide brief biograph­ies of every single one of the 113 indi­vidu­als who have sat on the Court was also misguided. As is often the case with lawyers, many of these indi­vidu­als did not lead very inter­est­ing lives, on or off the Court.

On the other hand, there is at least one glar­ing omis­sion in Irons’ cover­age. Again, I am not sure what the scope of a people’s history should be, but one would think that any such work would have certainly included discus­sion of the many Supreme Court cases, decided largely in the first two decades of this century, which concerned the rights of labor unions to organ­ize and strike. But Irons misses almost all of these cases. Those inter­ested in the subject should consult William Forbath’s Law and the Shap­ing of the Amer­ican Labor Move­ment, which describes the tremend­ous impact these cases had upon the polit­ical tactics of Amer­ican labor.

Irons also too frequently gets history wrong. This is true about Amer­ican history in general. For example, William Brad­ford was the governor of Plymouth Colony, not Massachu­setts Bay (a signi­fic­ant differ­ence, believe it or not); John Adams was not “a born and bred aris­to­crat,” he was the son of a shoe­maker and farmer; the state­ment that James Madison was “an advoc­ate of radical demo­cracy” is insup­port­able; and Richard Nixon was never the governor of Cali­for­nia.

It is also true with respect to Irons’ treat­ment of the Supreme Court itself. Thus, Irons is wrong to state cases decided in the 1940s involving the refusal of the chil­dren of Jehovah’s Witnesses to salute the flag in school were the first occa­sions upon which the Court inter­preted the free exer­cise clause of the First Amend­ment. As early as 1878 the Court held that stat­utes govern­ing poly­gamy did not viol­ate the free exer­cise rights of Mormons.

Simil­arly, it is not correct that cases involving the arrest of oppon­ents of Amer­ica’s involve­ment in World War I were “the first time” the Court considered the scope of free speech rights under the First Amend­ment. Almost half a century before, the Court rejec­ted First Amend­ment chal­lenges to federal laws that allowed offi­cials to exclude from the mails mater­i­als considered obscene or immoral. (David Rabban’s Free Speech in Its Forgot­ten Years is another book that Irons might have consul­ted prof­it­ably.)

Irons’ worst histor­ical error occurs in his account of the creation of the Court, a subject to which he gives very short shrift within his exten­ded discus­sion of the doings of the Consti­tu­tional Conven­tion. Irons is correct that the Framers inten­ded for the Court to exer­cise judi­cial review, even though they did not say so expli­citly in the Consti­tu­tion itself. But he is very wrong when he declares that the Framers thought that the exer­cise of judi­cial review would make the Court “the domin­ant branch of the national govern­ment.” On the contrary, as Madison said in The Feder­al­ist, it was the Framers’ belief that, in repub­lican govern­ments, “the legis­lat­ive author­ity neces­sar­ily predom­in­ates.” Indeed, with this thought firmly in mind, the Framers saw their most crucial task of insti­tu­tional design to be grant­ing suffi­cient power to the exec­ut­ive and judi­cial branches so that the legis­lat­ive branch might be checked. There is no evid­ence for Irons’ asser­tion that the Framers contem­plated judi­cial suprem­acy.

However, these specific faults are not what make A People’s History of the Supreme Court such a dispir­it­ing book. Rather, it is because, while Irons espouses an avowedly liberal/left perspect­ive, he makes no effort to justify the legit­im­acy of that perspect­ive as it relates to the work of the Court. The reas­ons for his fail­ure to do so are, I think, not without import­ance for those who would seek to under­take such a justi­fic­a­tion.

To begin with, but for precious few excep­tions, Irons’ criterion as to whether a partic­u­lar case was correctly decided by the Court is a simple one. He looks at the result and considers whether that result is consist­ent with the dictates of a left/liberal polit­ical vision. Thus, the decisions of the Court under John Marshall—Irons, by the way, has a dislike for Marshall that approaches the unseemly—are decried because in those decisions “the protec­tion of prop­erty far outweighed the rights of people like blacks or women.” (The ahis­tor­ical char­ac­ter of this judg­ment is palp­ablevir­tu­ally no one in the main­stream of the Amer­ican polity was press­ing for the rights of blacks or women in the early 19th century­but this is, as I hope to show, only part of a larger prob­lem.) Simil­arly, the Warren Court is lauded because it “turned the Bill of Rights into a power­ful weapon against govern­ment offi­cials—­from police officers to pres­id­ent­swho failed to treat people fairly and equally.” Irons is there­fore little concerned to eval­u­ate the strength of the consti­tu­tional reas­on­ing set forth in Supreme Court opin­ions.

Indeed, Irons sees consti­tu­tional adju­dic­a­tion as little more than a sort of charade. For him, Supreme Court justices have for all time decided cases by first consid­er­ing what result best comports with their polit­ical preju­dices. Only then do they consult the Consti­tu­tion, and they do so only to find some appro­pri­ate language with which to dress up opin­ions which are at bottom noth­ing but the expres­sion of those preju­dices.

For example, Irons asserts that John Marshall’s method of opin­ion writ­ing was to simply place “his judi­cial imprim­atur on the argu­ments of the side he favored.” Not surpris­ingly, there­fore, Irons views the Court itself as noth­ing but a legis­lature that is lucky enough to be able to wield consti­tu­tional rhet­oric as a means of legit­im­iz­ing its polit­ic­ally motiv­ated decisions. Irons is quite expli­cit in press­ing this view. Here is his eval­u­ation of Brown v. Board of Educa­tion:

Senator James East­land, racist to his core, was right when he called Brown a “legis­lat­ive decision by a polit­ical court.” The Court has always been a polit­ical body. Its historic opin­ion­s—in Marbury, in Dred Scott, in Loch­ner, in West Coast Hotel, in Brown—have all been legis­lat­ive decisions; they “made” new law to replace old laws. To claim that justices simply “inter­pret” the Consti­tu­tion denies real­ity; the Court neces­sar­ily plays a role in the polit­ical process.

This is really noth­ing but legal real­ism at its most vulgar. Every­one accepts that the personal polit­ical opin­ions of Supreme Court justices play a role in their decision making and that the Court itself is sens­it­ive to the polit­ical impact of its decisions. Irons is thus correct to say that “connec­tions of law and polit­ics” may be discerned in the decisions of the Supreme Court. But to write as if the Court is noth­ing but a legis­lat­ive body perform­ing a legis­lat­ive func­tion is not only profoundly cynical, it is to utterly miscon­strue the Court’s func­tion in our polity.

That func­tion cannot be under­stood apart from an under­stand­ing of the func­tion of a writ­ten consti­tu­tion. Consider the follow­ing marvelous state­ment of Justice Robert Jack­son, which refers to the Bill of Rights, but which can be exten­ded to the Consti­tu­tion gener­ally: “The very purpose of a Bill of Rights was to with­draw certain subjects from the vicis­situdes of polit­ical contro­versy, to place them beyond the reach of major­it­ies and offi­cials and to estab­lish them as legal prin­ciples to be applied by the courts.”

Irons quotes this passage, but I’m not sure he grasps its mean­ing. Legis­latures are thor­oughly polit­ical bodies. But what can be most fruit­fully garnered from Justice Jack­son’s state­ment is that, when the Supreme Court exer­cises judi­cial review, it makes choices about what will be insu­lated from polit­ics. That is, what are the activ­it­ies and aspects of a person’s life that our Consti­tu­tion protects such that the polit­ical branches of our govern­mentthe legis­lat­ive and exec­ut­ivemay not regu­late them in certain ways or, in some cases, may not regu­late them at all?

The Supreme Court has, of course, given differ­ent answers to this ques­tion over the course of our history. In Irons’ view, and in mine, many of these answers have been wrong, as when the Court protec­ted the rights of slave­hold­ers in Dred Scott, or when it gran­ted consti­tu­tional status to the unreg­u­lated free market in Loch­ner, or on the numer­ous occa­sions it has refused to protect polit­ical speech from govern­ment suppres­sion. (I would, however, be more will­ing than Irons to eval­u­ate the work of the Court in light of the exigen­cies of the larger polit­ical culture. I would hope thereby to avoid castig­at­ing John Marshall unduly for not protect­ing the rights of blacks and women.)

But, over the course of the last half-century, Irons believes, and I largely agree with him, that the Court has gotten much right. The Supreme Court of this era has protec­ted unpop­u­lar speech, racial minor­it­ies, the rights of the accused, and has gran­ted consti­tu­tional status to rights of personal privacy. But because Irons views the Court as a purely polit­ical body, and because he sees the Consti­tu­tion as merely the Court’s polit­ical tool, he can offer no justi­fic­a­tion for these decisions other than that they comport with his polit­ics.

And this is a great shame because the liberal consti­tu­tion­al­ism of the last half-century, which has largely survived the Burger and Rehnquist Courts, is now under fero­cious attack. When respect­able reac­tion­ar­ies like Robert Bork howl that justices who take liberal consti­tu­tional posi­tions are blatantly writ­ing their polit­ical preju­dices into law, they need to be answered. But Irons cannot answer them because this is, in effect, his posi­tion as well.

This will simply not do. Liberal consti­tu­tion­al­ism cannot be defen­ded using the language and categor­ies of quotidian polit­ics. It must seek justi­fic­a­tion in explor­a­tions of the intent of the Framers, in the terms of two centur­ies of consti­tu­tional preced­ent and by argu­ment that sets forth the way in which the prior­it­ies of liberal consti­tu­tion­al­ism further the best of what Amer­ica can be as a demo­cratic polity. A People’s History of the Supreme Court provides no help in this under­tak­ing.

Mark F. Kozlowski is a Staff Attor­ney at the Bren­nan Center for Justice at NYU School of Law