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Correcting Ilya's Misimpression:
In his latest contribution to our exchange, my co-blogger Ilya credits me with creating a novel new theory of judicial review, and after so crediting me, concludes that my new theory is interesting but inconsistent with my prior posts. However, I am afraid he misunderstood my last post; I did not mean to suggest such a position. In this post I want to clarify my views just to make sure there is no misunderstanding.

  First, let me back up to make sure we're all on the same basic track. I believe the basic question in our exchange boils down to how eager courts should be to invalidate legislation. Ilya and I both agree with the sound principle of judicial review: If a law is contrary to the Constitution, then it is is void. The question is how judges should approach the question of determining whether a law is unconstitutional. On my end, I argue that judges should approach this question with humility. They should presume that properly enacted laws are constitutional, and they should not strike down laws unless it is clear that the law crosses the line and is unconstitutional. If I understand Ilya correctly, he believes that judges should be bold in striking down legislation. They should not presume laws are constitutional, and they shouldn't hesitate to strike down laws if they have a theory, personally persuasive to them even if not widely held, that the law is unconstitutional.

  In our series of posts, Ilya and I rooted our approaches in different views of legitimacy. I argued that judges should approach their role with modesty because constitutional theory is too often cover for political views: Libertarians have libertarian theories, progressives have progressive theories, etc. No one can agree on the right theory, and everyone seems to have a theory that matches up very nicely with their political views. In light of this, an aggressive judicial role based on controversial theories would often end up imposing the judge's policy preferences over that of the people. Ilya countered by pointing to the Supreme Court's relatively high popularity ratings. To be candid, I'm not entirely sure of why Ilya considers the Supreme Court's approval ratings to be relevant. But as best I can tell, the idea is that If the Supreme Court is more popular than the elective branches then it must mean that "the people" actually like its decisions and want it to take an aggressive role.

  In my last post, I pointed out what I think is a pretty basic error with Ilya's reliance on the Supreme Court's approval rating in his argument: The Supreme Court we have is not the Supreme Court that Ilya wants. That is, my understanding is that Ilya wants the Supreme Court to change course. He wants the Court to start to take on an aggressive judicial role, rather than have the generally deferential and majoritarian approach it usually employs now. If that's right, then I don't know why the Supreme Court's current approval rating is supposed to support Ilya's claim of public support for the role he would like them to take. To the extent the Court's approval ratings reflect agreement with the Court's decisions as policy — which I think is true only modestly, for reasons suggested below — the Court's approval ratings presumably reflect in part its majoritarian role. If you change that role, as Ilya would like, then the Court's approval ratings would presumably change.

  Just to be extra clear, though, I didn't mean to suggest that I agree with Ilya's notion that approval ratings are sign of whether a legal institution reflects the consent of the governed. I made the narrow point I did in my last post to point out that even if you accept Ilya's assumptions that this is true, reliance on the Court's current approval ratings can't make the point Ilya wants. Unfortunately, I must have made this point poorly, because Ilya read this as an acceptance of his assumptions and then the creation of a novel new theory in which state and federal laws should receive different degrees of deference. To the contrary: I do not think a legal institution's popularity reflects whether its decisions are consistent with the consent of the governed.

  In the case of the Supreme Court, for example, very few people have any idea of what the Supreme Court does. And among that small group, only a very tiny minority has any understanding of why it does it. Given that, approval ratings will tend to reflect a lot of stuff beyond whether the public agrees with the Court's decisions as matter of personal preference. There is presumably some connection between the Court's popularity and public agreement or disagreement with its decisions. If the Court started striking down a lot of popular laws, then I would expect its popularity to drop. But that connection is indirect at best. And more broadly, as I suggested in my last post, there are lots of ways that the Supreme Court can thwart preferences of minorities while being popular with the majority.

  In any event, I don't know how many readers are particularly interested in this thread, but I did want to correct Ilya's misimpression about the point I was making. And I hope Ilya will correct me if I am misinterpreting his.
Clayton E. Cramer (mail) (www):
I agree with you. The federal judiciary is not elected, and one in office, almost impossible to remove. Popular sovereignty is the root of legitimacy in our system of government. Judges and judicial review have an important role to play, but as the least directly elected of the three branches, they need to be aware of the possibility that they are most out of touch with the root of legitimacy.

Judges need to use their authority to overturn the will of the people with considerable care. A law must be clearly unconstitutional before they overturn it, and much of what has been done over the last 50 years by the federal judiciary involves either arguable questions, or cases where a law was clearly constitutional--just not popular with the judiciary.

Perhaps the best example of this was Romer v. Evans. Here was a case of the Court not simply overturning a statute, but an amendment to the state constitution adopted by popular vote! And they did so by arguing not that the Fourteenth Amendment's equal protection clause prohibited distinctions based on behavior, but by arguing that there was no rational basis for the people of Colorado to vote that way. This is the heights of arrogance--to decide that a majority of nine judges are more rational than millions of Coloradoans.
1.28.2008 1:07pm
CJColucci:
everyone seems to have a theory that matches up very nicely with their political views.

There must be an odd exception somewhere, unless we define "political views" at a very high level of generality. Is a Justice who upholds what he or she considers to be a remarkably silly or even mean-spirited law acting contrary to his or her political views, or is he or she ruling consistently with a broad view of what congress or the states can legislate about? Can a Justice who takes a broad view of the federal commerce power and the states' police power ever act inconsistently with his or her "political views" in that sense?
1.28.2008 1:25pm
The Emperor (www):
Just wanted to chime in and say I agree with you completely. Well argued and well explained. Keep fighting the good fight!
1.28.2008 1:27pm
Clayton E. Cramer (mail) (www):

Is a Justice who upholds what he or she considers to be a remarkably silly or even mean-spirited law acting contrary to his or her political views, or is he or she ruling consistently with a broad view of what congress or the states can legislate about?
Unfortunately, there aren't enough justices who conform to what you have described--which is what their job description is supposed to be. When judges are reduced to calling a vote of the people irrational because they have no other way of imposing their desires on an entire state, that really shows where the judiciary is.
1.28.2008 1:35pm
AF:
Fair enough. But in a broader sense, it is valid for Ilya to put your argument to the proof. Your argument, as I understand it, is that validly enacted laws should be presumed constitutional because they are more democratically legitimate than judicial decisions. Ilya challenges the premise of that argument -- he questions whether the political branches are actually more democratically accountable than judges (and if so, by how much). Public opinion polls may not be the answer, but it is a good question.

I suspect the answer depends on, or at least varies with, the context. A theory of judicial review based on democratic legitimacy leads to the conclusion that judicial review should be more searching in some contexts than others.
1.28.2008 1:45pm
Q the Enchanter (mail) (www):
This thing between you two isn't going to go Gossage-Vardebedian, is it?
1.28.2008 2:16pm
Clayton E. Cramer (mail) (www):

Your argument, as I understand it, is that validly enacted laws should be presumed constitutional because they are more democratically legitimate than judicial decisions. Ilya challenges the premise of that argument -- he questions whether the political branches are actually more democratically accountable than judges (and if so, by how much). Public opinion polls may not be the answer, but it is a good question.
Hmmm. Legislators (both state and federal) are elected. They have to face the voters every two, four, or six years to get re-elected. These races are highly publicized, and lots of money gets spent on advertising to persuade voters to vote for or against various candidates. The advertising is often misleading, but there is information available for voters to examine, in making a decision. When electing legislators, individual voters get to make somewhere between 1/4000th of the decision (New Hampshire lower house districts are tiny) and 1/33,000,000th of the decision (U.S. Senator representing California).

Federal judges are appointed for life. There is, at best, some opportunity for voters to express their opinion to members of the U.S. Senate about confirmation--but except for Supreme Court justices, and very, very occasionally, a Court of Appeals judge, the average voter sees absolutely nothing about the judge's positions--indeed, judges are unable to say how they might rule on a particular position. Under the best of conditions, voters have at best a very indirect influence by the pressure that they put on their Senator, who may or may not listen to his constituents. Once in that job, the judge is there effectively for life, unless he takes bribes, and then has to get elected to Congress like Alcee Hastings (D-FL).

And you find it even slightly credible that the unelected, unremovable branch is more democratically legitimate than the elected, up for re-election branch?
1.28.2008 2:39pm
AF:
And you find it even slightly credible that the unelected, unremovable branch is more democratically legitimate than the elected, up for re-election branch?

As a general matter, no, but it is not as simple as you suggest.

First, the practical difference in democratic accountability between the judicial and "political" branches is not always that great. The selection of judges is a highly salient issue in national presidential campaigns, giving federal judges some claim on democratic legitimacy despite their lifetime appointments. Further, the vast majority of constitutional challenges are "as-applied" challenges, asserting that the challenged legislation is unconstitutional as applied by executive officials. Many of these executive officials are appointed rather than elected, and particularly on the state level, many of them are entrenched and practically shielded from democratic accountability. Add this together, and there are a number of situations in which the "democratic legitimacy" argument for strong judicial restraint is questionable as an empirical matter. Take, for example, the public authorities that commonly exercise the eminent domain power. It is hard to argue that the Robert Moses's of the world have a stronger claim to democratic legitimacy than the Samuel Alito's.

Second, there are a number of situations where the democratic process produces results that threaten the long-term health of democracy. A good example of this is political speech: from time to time we have got democratically-enacted laws banning politically unpopular speech, which if upheld would prevent the free and open debate that is necessary for democracy to work. Another example is laws that exclude minority groups from the political process. Reasoning from pro-democratic premises, these laws don't deserve the same deference that other laws, that do not threaten democracy, deserve.

Democratic legitimacy is a strong prima facie reason for judicial restraint, but the argument needs to be played out, and in my view, the John Hart Elys of the world come out ahead of the James Bradley Thayers.
1.28.2008 4:56pm
legal layman (mail):
In all this matter, I thought the basis of having judicial review was originally intended to enable judges the ability to strike down unconstitutional laws? Isn't that why they are appointed for life on the Supreme Court? Considering that the founding fathers based the Constitution and Bill of Rights on government's likely abuses and the average citizens' political incompetence/laziness, shouldn't we reference primary era-based sources like the Federalist articles as part of our judges' standards towards the constitutionality of newly formed laws? I'd rather have a stricter "no!" based court system that capped constitution violating laws and informed legislators to work within the originally framed governmental system. I think that would curtail abuses of all the branches in the our system. I want an uncreative judge who isn't making law from the bench, but who is maintaining the solubility of the established system. Very dull and drab I know, but I'm convinced it works. The founding fathers thought so.
1.29.2008 3:39pm