Always up for a piece noting the Supreme Court’s largely negative history, I was disappointed by Rob Hunter’s piece in a couple respects. I’ll leave the question of political strategy and what progressives should do about judicial review to another post. Here, I want to focus on the need to analyses of judicial review to take into account how the practice actually works.
One problem with the argument is reveled early, with the old “attribute an bad argument to an entire group of people”:
Liberals lambasted Roberts for arguing in bad faith, but in reality they share his vision. In the liberal political imagination, the Supreme Court is an institution that must vindicate principles rather than practice politics. As the philosopher Richard Rorty once acknowledged, liberals “turn to the judiciary as the only political institution for which we can still feel something like awe. This awe … is respect for the ability of decent men and women to sit down around tables, argue things out, and arrive at a reasonable consensus.”
Unless a simple-minded caricatures of Ronald Dworkin and arguments made by Richard Rorty that Rorty himself has repudiated define “the liberal imagination,” the point isn’t really worth engaging with. Most actually existing liberals in 2014 believe in some form of legal realism, and the liberals who regard the Supreme Court with “awe” are similarly thin on the ground.
On the more specific claims, as is often the case the discussion of Dred Scott reveals some flawed ways of thinking about the Supreme Court as well as more implicit attacks of strawman:
Before the Civil War, the Court largely refrained from invalidating congressional legislation on constitutional grounds. The only important such episode was Chief Justice Roger Taney’s decision in Dred Scott v. Sandford. Taney wrote that Congress could not forbid the extension of slavery into the territories, and added infamously that constitutional protections applied only to whites. Dred Scott foreshadowed the most obvious and frequent future use of judicial review: protecting constitutional boundaries against the incursions of democratic politics.
Dred Scott was not undone through another decision, but through victory over the seceding states. America’s bourgeois revolution — the mobilization and death of hundreds of thousands of soldiers, along with the emergence of a federal government with truly national prerogatives and powers — was what ended slavery, rather than the deliberations of nine old men in robes. The federal government’s victory in the Civil War was memorialized by the Thirteenth, Fourteenth, and Fifteenth Amendments, which established the primacy of a national conception of citizenship over the semi-feudal patchwork of citizenship rights of the antebellum republic.
A few points:
- It’s not clear to me who Hunter is arguing with here. On the narrow point, nobody thinks the Supreme Court was an ally in the abolitionist crusade. On the more general point the example seems to be addressing, nobody thinks the Supreme Court is the only way of advancing major political change and very few people think it’s the best way.
- As I’ve argued before, while it’s used this way across the ideological spectrum Dred Scott is a particularly bad example of the Supreme Court “protecting constitutional boundaries against the incursions of democratic politics.” The law “struck down” by Dred Scott had already been repealed. The Democratic leadership in Congress had urged the Supreme Court to decide the case exactly as is did for years. The Doughface-in-Chief praised the decision before it was even officially released. Dred Scott wasn’t problematic because it usurped the preferences of elected officials; it was problematic because is embodied the preferences of elected Jacksonian officials, which were terrible. This isn’t a problem that could be solved by eliminating judicial review.
- Dred Scott, despite its prominence as a symbol, is also notable for its lack of substantive impact on national policy both coming and going. In 1857, its holdings were irrelevant because congressional majorities and the president opposed citizenship for people of color and opposed general bans on slavery in the territories. In 1862, it was irrelevant because congressional majorities and/or the president supported citizenship rights for some free blacks and supported bans on slavery in the territories, and ignored Dred Scott while instituting them. (The fact that so many people vastly overrate the importance of Dred Scott, however, is hard to square with assertions that people approach the Supreme Court with uncritical reverence.)
I’m also puzzled by some of the argument about Reconstruction:
But the ink had barely dried on the Fourteenth before the Supreme Court busied itself with effacing its Privileges or Immunities Clause, which empowered the federal government to protect individual citizens from abuses by state governments. (Contemporary examples of such abuses include welfare “reform,” union-busting, and all-out assaults on public education.) In the Slaughterhouse Cases, five justices narrowly construed the Privileges or Immunities Clause to prevent its extension into state politics — a warning that the federal judiciary could serve as a redoubt for conservative resistance to the project of building a national, centralized, and egalitarian state.
First of all, while the 14th Amendment analysis (although not the judgement) of the Slaughterhouse Cases was certainly wrong, whether the p&i clause can be plausibly read as preventing various bad economic policies passed by state legislatures is, at best, highly contestable. It’s also, in this context, incoherent — I thought we didn’t want the Supreme Court “protecting constitutional boundaries against the incursions of democratic politics”? (The Civil Rights Cases would have been a much better example here.)
It is an important truth that the Supreme Court has sometimes been a resort for forces opposed to a strong national state. But, again, it’s important to remember the Supreme Court generally reflects the views of the dominant coalition. The Supreme Court’s retreat from civil rights protections during Reconstruction mirrored that of the Republican Party in general. Consider Section 2 of the 14th Amendment. It requires Congress to reduce the representation of states that disenfranchise adult males for reasons other than criminal activity; it’s not stated as an option but as a responsibility. What happened is that states engaged in plenty of disenfranchisement and Congress did nothing. This is more representative; the Supreme Court was a very minor factor in the reemergence of Jim Crow.
There is good reason to be skeptical of judicial review, but too many such critiques vastly overrate its effects. I’ll return to what this means in the follow-up post.