- The Washington Times - Saturday, June 7, 2003

William Rehnquist’s tenure as chief justice of the United States is well into its twilight period. Another term, his 17th, as the presiding justice is quickly coming to an end. While scholars routinely contrast the “conservatism” of the Rehnquist court with the “liberalism” of the Warren court, the current court is decidedly “modern,” and thus quite similar to the Warren court, in the way it views its place and role in the constitutional system.

Unlike the court under the great Chief Justice John Marshall, the modern judiciary assumes as a matter of course that all matters are open to its review. Although Chief Justice Rehnquist has reduced the Supreme Court’s caseload and tightened the rules of standing that govern who may petition the court for redress, little has transpired during his tenure to disabuse Americans of the belief that governance through the judiciary is as acceptable as governance through the traditional political branches.

While the Rehnquist court did not fashion the argument for judicial equality or “parity,” it has done its part to solidify the conviction that the judiciary, no less than the legislative and executive branches, may properly participate in shaping and directing the American people’s way of life. Witness the decision at the end of the 1990s to make schoolyard bullying a federal crime.

The Supreme Court’s subscription to the parity argument is evident in the rather “liberal” use of the formidable power of judicial review. The most common charge made by critics of the Rehnquist court is that it engages in a form of “conservative” activism. In point of fact, the current court regularly employs the rhetoric of the schoolmaster when speaking to Congress, executive department agencies, and the states. Even when upholding congressional action in the Family and Medical Leave Act case decided at the end of May, the chief justice pointedly lectured the members of Congress about the limits of their powers.

There is little doubt that public acceptance of the judicial equality argument facilitated, even legitimized, what “reshaping” of constitutional law has occurred during Chief Justice Rehnquist’s watch. By the mid-1980s when he was elevated from associate justice to chief, the American people had bought into the claim that the judiciary could freely review any matter, criminal or civil, involving public or private actors, that attracted its interest. John Marshall’s observation that it is the responsibility of the judiciary “to say what the law is” was treated as an empty vessel into which any meaning could be poured — it also had acquired the same global status as the words, “All men are created equal.”

In defense of Justice Rehnquist, it might be argued that the ends he has sought to advance (not infrequently in strong dissents), such as the reinvigoration of the federal system, have brought us closer to the republic envisioned by the Founders; while the means he has employed, especially the liberal use of the court’s review powers, were a familiar part of the governmental landscape by the late 1980s. In short, it might be argued that his ends justified the use of means that had already been embraced by the people. What this defense of the current court overlooks, however, is the problematical presumption of judicial parity or equality that underlies the tone and substance of the court’s rulings.

There is ample evidence that the leading Framers assigned considerable value to an independent judiciary committed to the protection of fundamental civil rights. It is telling that Alexander Hamilton, the frequently maligned defender of a strong executive, supplied the defense of a general power of judicial review in the Federalist Papers. An independent judiciary, he argued, would be able to check the excesses of the other branches, which in turn is essential to the preservation of limited government.

What is not so clear, however, is that the Framers believed an independent judiciary ought to be the “equal” of the political departments. The judiciary, after all, is the subject of the shortest of the Constitution’s Articles (I-III) that deal with the major departments of the government. In addition, the Constitution does not specifically authorize the judiciary to exercise a general power of judicial review.

No less a defender of judicial independence than John Marshall was careful not to claim that the judiciary should behave as if it was the equal of the legislative branch. Marshall employed the court’s review powers only once to set aside national legislative action, and only a small part of a larger legislative measure at that.

Significantly, while offering an expansive interpretation of the commerce power in Gibbons vs. Ogden, a New York case involving a clash between state and federal licensing acts, Marshall made reference to the “sovereignty of Congress” while carefully noting that “[t]he wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse.” He then added, “They are the restraints on which the people must often rely solely, in all representative governments.”

Marshall understood that the Constitution set up a democratic republic and the American experiment in self-government would necessitate judicial self-restraint to be successful. He did not seek to judicialize governance. Marshall, for example, entrusted Congress with considerable discretion in the use of the commerce power and acknowledged in Marbury vs. Madison, the groundbreaking judicial review case, that the “political” actions of the president fall outside the boundaries of judicial scrutiny.

What Marshall understood was that the judiciary must be both independent and respectful of the nature of the constitutional system as a democratic republic. It is too often forgotten that the delegates at the Constitutional Convention voted on August 27, 1787, near the end of their deliberations, to limit the Supreme Court to the review of matters of a “Judiciary Nature.” The court’s role was to be a limited one, befitting the fact that this was to be a system where the people would govern themselves principally through their elected representatives.

The Supreme Court would not only strike a blow for democracy by restraining its inclination to judicialize life in America, but it might discover that a policy of restraint is likely to heighten public respect for the judiciary and the entire constitutional system. The nobility of their intentions notwithstanding, the justices end up threatening the work of the Founders when they assume the role of “taskmasters” of the republic.

It might be added that it is not inconceivable that a future chief justice could employ the rhetoric and the actions of the current court as weapons in an assault on Chief Justice Rehnquist’s own agenda, so that his victories (e.g., revitalizing the federal system and reinvigorating protection for property rights) may turn out to be short-lived at the same time that his tactics have strained the Founders’ vision of the proper place and role of the judiciary in our democratic republic.

David Marion is Elliott Professor of Political Science and director of the Wilson Center for Leadership in the Public Interest at Hampden-Sydney College.

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