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:
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.
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.
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