- The Washington Times - Sunday, October 6, 2002

Again this year, the U.S. 9th Circuit Court of Appeals will have its share of decisions reviewed by the U.S Supreme Court. Reports that the Supreme Court has consented to review a case arising out of the 9th Circuit have been known to provoke perceptible snickering from constitutional law scholars and journalists who cover the judicial department. The 9th Circuit, however, is not isolated in its apparent willingness to resist some of the signals the Rehnquist court has been sending for more than a decade.
There is less instinctive deference today by lower federal courts and state supreme courts to the reasoning and decisions of the Supreme Court than was the case 50 years ago, and the Supreme Court itself bears the lion's share of the responsibility for this. Indeed, a case that celebrated its 40th anniversary earlier this year, Baker vs. Carr, contributed mightily to intrajudicial tensions by injecting the federal judiciary into partisan political battles (specifically electoral districting), thereby inviting the politicization of the judiciary.
It is this politicization that is at the core of the difficulties the Supreme Court has experienced in eliciting appropriate deference from lower courts. That political institutions have fared no better in their contests with judicial officials should provide little consolation to persons who worry about the health of the constitutional order.
Justice Felix Frankfurter warned the court in Baker that districting disputes ought to be resolved by the political branches of the government and that the judiciary "ought not to enter this political thicket." Frankfurter faulted the majority for presupposing that the Constitution provides protection for all rights as well as redress for all grievances and that the judiciary should be prepared to remedy injuries left unredressed by the political branches. Justice Harlan, who joined Frankfurter in dissent, added that "observers of the court who see it primarily as the last refuge for the correction of all inequality or injustice, no matter what its nature or source, will no doubt applaud this decision and its break with the past."
As a result of Baker and Reynolds vs. Simms, the follow-up case that gave us the one-man, one-vote rule, federal courts are now drawn into every conceivable challenge to state districting schemes a case from Mississippi is on its way up this term. Not surprisingly, decisions like Baker and their progeny invite government officials, both executive and legislative, to give heightened attention to the political views of candidates for judicial positions. It should not be surprising to find these candidates, in turn, bringing political agendas to bear on their labors. Nor should it be surprising if some of them are inclined to test the resolve of the Supreme Court when they are unhappy with its rulings.
Admittedly, there is a difference between resistance emanating from state supreme courts and lower federal courts. State courts, acting as defenders of state interests in a federal system, arguably might have a responsibility to test the resolve of the U.S. Supreme Court when the will of the state legislature or the people of the state is imperiled. Resistance from a federal district court or court of appeals raises more serious questions since it is constitutionally subordinate to the Supreme Court and lacks anything like Tenth Amendment legitimacy in clashes with the highest court in the land.
Although the Rehnquist court, unlike the Warren court that produced the Baker decision, has enforced fairly restrictive rules of standing in order to limit access to the judicial forum, its unembarrassed use of the judicial review powers has not been lost on lower court judges and unavoidably contributes to the politicization of the judiciary. Chief Justice William Rehnquist has not shied away from using the court's formidable review power to strike down legislative and executive regulations, and "capturing" judicial positions is the principal route to controlling this all-important power.
The court seems to have run much further with its review powers than Chief Justice John Marshall intended in Marbury vs. Madison, his 1803 decision that is synonymous with a general power of judicial review. Marshall, however, explicitly excepted "political" decisions from this review power, a position that fits well with James Madison's observation that the delegates at the Constitutional Convention had voted to limit the Supreme Court's review powers to "cases of a judiciary nature."
Beyond damaging the reputation of the courts, the politicization of the judiciary threatens to erode public respect for the very laws that judges interpret and apply in the course of rendering decisions. It should not be surprising that many Americans have come to believe that judges construe laws in accordance with personal predilections or political preferences. Habits of law-abidingness are tough to cultivate in the face of such convictions.
There is little doubt that leading Founders understood that the judicial department would have an important role to play in promoting a civic culture that would support a democratic-republican constitutional order. To carry out this function with the results intended by the Founders, the judiciary must protect its own reputation for fairness and impartiality, something Justice Frankfurter believed required the "court's complete detachment, in fact and in appearance, from political entanglements."
The Supreme Court during the upcoming term will help itself out, as well as the country, if it actively seeks ways to alter the impression that the courts are just alternative political institutions. This will require substantive changes in the construction it gives to the place of the courts in our democratic system of government.
The Supreme Court can make life easier for itself and provide additional incentives for civic engagement at all levels of government by taking seriously James Madison's declaration that the jurisdiction of the federal courts should be "constructively limited to cases of a judiciary nature." It is, after all, quite possible that the "father" of the American Constitution knew what he was talking about.

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

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