[T]o be “reactionary” means nothing more than to believe that in some of its aspects, however secondary, the past was better than the present.
Everything has been said before, but since nobody listens we have to keep going back and beginning all over again.
Walter Bagehot said of the English constitution, “[I]n the full activity of an historical constitution, its subjects repeat phrases true in the time of their fathers, and inculcated by those fathers, but now no longer true.” So it is with us. We are living with a vision of a Constitution that no longer exists. The reason is apparent. The Constitution, which is, for all practical purposes, the Supreme Court, follows the elite culture. Thus it is that the liberal transformation of the Constitution over the past fifty years has been accomplished by Courts with heavy majorities appointed by Republican presidents (the current count is seven to two).
As cultural dominance passes from one elite to the next, so does the Supreme Court’s law change to reflect the views of the new elite. New values are added and old ones abandoned. Not all values, however, can find even remotely plausible support in the historical Constitution. When vagabond values are to be implemented, the Court’s declarations that various executive or legislative acts are unconstitutional are often not even colorably related to the charter supposedly being applied. Disregard for text, legislative purpose, and history confers enormous freedom, so that the Court, employing some primitive and often sophomoric version of moral philosophy or natural law, is at liberty to enforce what it chooses. It is not to be expected that lives devoted to lawyers' arts would, upon the donning of black robes, suddenly produce philosophers. We are then governed not by law but by the moods of an unelected, unrepresentative, and unaccountable committee of nine lawyers. What they decide is often law only in the sense that we will obey their ukases, even when they split five to four and the four have by far the better arguments. What they decide is not law in the sense that it has its origin, its root, in any legal materials and that the result falls within a range that would be regarded as acceptable by most judges, past, present, and future. Moods shift; fair readings do not.
The progression is clear on the record. In the last third of the nineteenth century and the first third of the twentieth, the dominant culture was that of the business class, and the Court often responded with the invention of constitutional rights favorable to that class, striking down reform legislation which, however unwise, was clearly within the constitutional powers of state and federal legislatures. The Court invented, for example, a right to enter into contracts that is nowhere to be found in the Constitution. Lochner v. New York, a 1905 decision, is the classic example. The Court, dividing six to three, struck down a state statute setting maximum hours for bakers as violative of the (nonexistent) right to make contracts. Early New Deal economic regulations were routinely invalidated until a series of retirements and deaths enabled Franklin Roosevelt to remake the Court. The cultural dominance of the business class having been ended by the Great Depression, the new Court freely approved economic regulations and began to prepare the ground for the creation of new rights. An even more momentous shift came with the Court headed by Earl Warren.
The New Deal Court had been philosophically riven. Arthur Schlesinger, Jr., has described the Court as it stood in 1947. The wing occupied by Justices Black and Douglas was “concerned with settling particular cases in accordance with their own social preconceptions,” a version of “value jurisprudence” identified largely with the Yale law school. Its dominant theme was equality, as shown by its heavy reliance upon the Equal Protection Clause. Schlesinger, Jr. wrote that “Black and Douglas vote less regularly for doctrines than for interests—for the trade union against the employer, for the government against the large taxpayer, for the administrative agency against the business, for the injured workman, for the unprotected defendant, against the patent holder—so that in the phrase of Professor Thomas Reed Powell 'the less favored in life will be the more favored in law.'” This was a flat contradiction of the judicial oath to “administer justice without respect to persons and do equal right to the poor and to the rich.” It was as well an expression of the socialist impulse which, significantly, became the regnant outlook of the Court at a time when the American intelligentsia was socialist. As a consequence of the Warren Court’s preference for equal results rather than equal justice, it politicized every branch of the law, statutes as well as the Constitution. Ironically, the Court’s favored constitutional implement was the clause of the Fourteenth Amendment promising “equal protection of the laws.”
Socialism, however, was then discredited. In practice it produced impoverishment and tyranny so that not even intellectuals could cling to its dream, or at least most of them could not do so publicly. Radicalism took the form of the New Left of the 1960s, which gradually grew more interested in personal freedom unrestricted by law, morals, or even the rules of self-preservation (drugs and filthy living conditions were often considered signs of “authenticity”). The New Left practiced a politics of expression and self-absorption. A vision of radical individual autonomy thus lay at the heart of their world view. There was a good deal of that in their intellectual class elders and now it is the dominant mood of the intelligentsia.
It is not too surprising, then, that a mood of radical autonomy or, if you will, moral relativism began to appear in the jurisprudence of the Supreme Court. The Court, in step with the intellectual class, has dropped the socialist drive of the Warren Court. The difference between the two Courts is shown by the differing fates of the two fields I know best, antitrust and constitutional law. The death of the socialist illusion made possible the use of basic economics to return antitrust to rationality. But the rise of moral relativism—perhaps a better term would be moral chaos—drove constitutional law in a new but no more respectable or rational direction.
Today, a lawyer who appears before the Court in a case involving antitrust, taxation, labor law, or a similar question will find his case is typically dealt with in a straightforward, lawyerly manner. But when the Court is presented with a cultural issue in a constitutional context, the Court majority usually departs from the Constitution, often indeed from any conceivable meaning of the Constitution, in order to enact an item on the modern liberal agenda, generally resulting in the enshrinement of radical individual autonomy as part of the Bill of Rights. That is signified by the Court’s heavy use of the Due Process Clause’s guarantee of liberty. To some considerable degree, therefore, it seems valid to say that the current Court is dominated by a gentrified form of Sixties radicalism. I do not know how otherwise to account for the absolute mess of our current jurisprudence of individual rights.
Though the justices are properly criticized for abandoning the proper judicial function to follow intellectual class fecklessness, responsibility for the health of the legal order does not, of course, depend entirely upon judges or even upon a reckless intellectual class. Responsibility rests as well with the practicing bar, the law schools, and, ultimately, with the public that elects or delegates to representatives the election of judges. None of these is performing well or even tolerably. The problems, not all of which may be soluble, lie in the nature of legal practice, the way law is taught, the modern conception of legal scholarship, the ideological direction of the courts, the enormously enlarged area of authority and competence appropriated by those courts, the eagerness of factions to circumvent democracy by litigation, and, finally, public incomprehension of what is and is not in our Constitution and so the public’s inability to judge the judges. I have had some experience as a practitioner, professor, government lawyer before the Supreme Court, and judge; doubtless my views are colored by that fact.
When college graduation approached and I was trying to decide on a career, law still recruited the young with prettified images of Holmes and Brandeis. It was Holmes who said that it was possible to live greatly in the law, a rather obscure remark that seemed meaningful at the time. A life in the law seemed to promise battle, require devotion, and reward learning—and what idealistic young man would not choose to be warrior, priest, and scholar? The reality proved to be rather different. Economic pressures have made law less of a profession and more of a business, drastically limiting the role the bar can play in maintaining the integrity of the law. Such concerns necessarily give way to an absorption with billable hours. Though it is not quite true, as a British barrister put it, that success in law depends on the ability to eat sawdust without butter, quite a bit of sawdust-munching is required.
Firms have, moreover, entered an era of giantism. When I joined the largest law firm in Chicago, it had fifty-three lawyers with fewer than a dozen more in a Washington branch. Today the firm has over 450 lawyers in Chicago and well over 900 nationwide, and it is by no means the largest in either category. A firm of fifty-three lawyers today would today be considered practically a boutique operation. Giantism produces an atmosphere more like a corporate headquarters than a partnership. Corporations are not known for a selfless devotion to sound public policy, nor, it turns out, is the practicing bar. That is not a criticism of either business or the bar, but merely a fact that probably cannot be altered.
At one time we were reconciled to the democratic unaccountability of courts by the promise that their powers would be kept within tolerable limits by the informed criticism of the bar. That has not been borne out. Practitioners have provided very little in-depth analyses of major constitutional doctrines; the organized bar has offered none. Attorneys, by and large, have not the time and energy left over from busy practices to study the fields in which the courts operate or to engage in sustained critiques. My practice was primarily in antitrust, but while it was apparent that the law was a doctrinal mess, there was no time to study it as a field; the problems present themselves case by case so that connecting links are not obvious, nor is it in either the client’s or the firm’s interest to have lawyers spending time on theoretical inquiries that, in any event, a judge is more likely to find irritating than persuasive. It is probably for that reason that the reform of antitrust law, when it occurred, came from the academy rather than from the practicing bar. Fields such as constitutional law, which rarely arise in ordinary practice, go almost entirely unexamined. Only ideological litigants, like the ACLU which is devoted to distorting constitutional law in the service of cultural leftism, have any occasion to spend a great deal of time on the subject. Moreover, since their success depends on judges, very few lawyers are willing to risk criticizing them. Bar politicians, leaders of the American Bar Association, for example, find it congenial to hobnob with judges and defend them from criticism. (The ABA, while it engages in professional training to some extent, is increasingly a culturally liberal political organization rather than a professional one, passing resolutions favoring a right to abortion, racial preferences, a universal right to food, AIDS needle-exchange programs, campaign finance reform, and opposing laws regulating sexual conduct between adults.) Its presidents make statements favoring judicial activism. Rather than providing an informed critique of the courts' performance, the ABA is a cheerleader for some of the worst tendencies of modern jurisprudence.
The exigencies of law practice discourage inquiries that have no immediate practical use. The last thing an advocate wants to tell a judge is that the case at bar presents a profound, or even a moderately interesting, question. That would suggest the case could be decided either way. His case, the lawyer must say, with every appearance of sincerity, is clear, so simple that it is hardly worth discussing, and must obviously be decided in favor of his client. The cases he cites are controlling whereas those mistakenly, and perhaps disingenuously, relied upon by his opponent are wide of the mark. So, too, with respect to policy arguments and hypothetical instances, both relied upon to show that only beneficial results will follow from accepting his position while his adversary’s contentions would plunge the law into chaos and black night. It can be an exhilarating game, but some lawyers eventually find its repetition turns into drudgery. If they are lucky, they find alternatives.
While the time had come to leave the practice, I do not regret in the slightest the eight years I spent there. There was a great deal of satisfaction in winning, the excitement of the contest, the tactical maneuvering, and the camaraderie of a team working on high-stakes and difficult cases. There was the night of the “lost chord” when at 4 A.M. a colleague at last found the perfect precedent for our side and slapped the book triumphantly back on the shelf. We went down the hall for a celebratory coffee, only to discover, upon returning to the library, that we never could find that case again. Or the night in the conference room when I looked up from drafting a difficult paragraph, found that my colleague had disappeared, and finally located him sleeping on the floor underneath the table. There was the romanticism (I don't know how else to put it) of leaving the office in the first gray light before dawn, the old stone buildings of Chicago just beginning to emerge from the blackness beyond the reach of the street lamps, catching a rare cab on Michigan Boulevard to go home to Hyde Park, shower, shave, put on fresh clothes, and, my wife and children still asleep, return downtown for another day’s work.
Ultimately, however, that was not the intellectual life the law had seemed to promise. Litigation is a plastic art; only those who were involved remember it at all. Like working a crossword puzzle, it is absorbing while you are doing it, but, when it is done, there is nothing left. In the days and nights, for weeks on end, that a friend and I spent writing and endlessly rewriting a brief about a now-forgotten trust estate worth many millions, we could have produced, I flatter myself, a book of some worth. In the long run, however, the real value of practice to me was that I learned how the court system works. Too many students and professors are inclined to view judges, particularly Supreme Court justices, as philosopher kings. Some experience trying to persuade judges would disabuse the professors, and hence their students, of that notion.
In seeking an academic position, I discovered that eight years of practice made me highly suspect. Some professors apparently thought former practitioners would tell war stories about their cases and teach students how to schmooze with the court clerk. Yale, however, with whatever reservations, appointed me to its law faculty, for which I will always be grateful. The first five years, until the student radicals arrived, were the best years of my professional life. The students were bright and argumentative. Ward Bowman, an economist, provided invaluable discussions about antitrust. Alexander Bickel—whom I count as the best friend I ever had—was equally important to my development of a theory of constitutional interpretation, though we disagreed about it. Together, we taught a seminar in Constitution Theory. Influenced by John Stuart Mill and extrapolating from Griswold v. Connecticut, the original right of privacy case, I made the preposterous argument that the only harm government should be permitted to prevent was physical injury. Bickel said, “What if I engage in indecent exposure?” I replied that the law already had a doctrine to deal with that. “What doctrine?,” Bickel asked. “De minimis non curat lex—the law does not take cognizance of trifles.” That was the only time in a long relationship that he was silenced for a minute.
Bickel emphasized tradition as the only effective curb on courts. His judicial philosophy, I told our class on the First Amendment, was a combination of Edmund Burke and Fiddler on the Roof. That one he liked. He recognized, however, that the Warren Court had shattered whatever tradition there was left to lean upon. I, in contrast, was searching for a firm theory of when government was permitted to coerce and when it was not. Both of us, I now think, were wrong. The tradition, such as it was, is now gone forever, and I came to realize that Lord Patrick Devlin was right: “it is not possible to set theoretical limits to the power of the State to legislate against immorality.”
Teaching is the best way to learn an entire field of law. Practitioners drill deeply into narrow areas in preparing a case. Academics teach across an entire field. Each has advantages, and, when combined, they nourish each other. When not combined, there is in each the danger of sterility. It is unfortunate that these two branches of the profession view each other with suspicion. It is even more unfortunate that sometimes the suspicion on both sides is justified. The aversion of many professors to those who practiced what the professors were supposedly teaching was astonishing. When I spoke at an appointments committee meeting against hiring young men and women just out of school or clerkships, I was met with stony expressions; nobody on the committee and few on the faculty had more than trivial experience with the day-to-day operation of the law. One exceptionally able student, urged to join the faculty, said he would like two or three years of experience first. He was told not to waste his time.
The insularity of legal academia has become a major problem. Many articles published in major law reviews are of no use to practitioners or judges but consist of philosophical exercises (at which law professors are not very good), often on the trilogy familiar in the humanities—race, sex, and class. Some prestigious law schools actually award tenure to those who write stories bereft of any legal analysis about the anguish of living in an oppressive society. It may be tempting to view such follies as no more than raw material for another Lucky Jim, but the situation is serious. Many law students are ill-prepared for their careers and potentially dangerous to their clients; they must be socialized and in some cases educated by the law firms that hire them.
Working in tandem with this distrust of professionalism is the strong liberal bias of law faculties. One professor said to another, with the intent that I should overhear, that it was the “shame of the law school” that it had two Republicans when no other department at Yale had any. Two out of about thirty-five was, in his view, too many by two, but he was wrong about the rest of the university: aside from the two excrescences in the law school, there was one other admitted Republican on Yale’s faculty of two thousand. There surely must have been more, but they had the sense to keep their heads down.
I would not overstate the matter. There were professors who offered professional training and maintained good relationships with the practicing bar. Nor do I do wish to give the impression that I was in any way ill-treated. Most of the faculty, if somewhat bemused by finding a conservative in their midst, were friendly and willing to hear, if not to adopt, nonliberal views. The problem was that ideas and attitudes were clustered at one end of the spectrum. Students were not exposed to the full range of opinion about law. The addition of former student radicals to faculties, moralistic men and women with harder ideological edges, seems at many schools to have made the few conservatives actually beleaguered. That is particularly true, though not exclusively so, of those who teach and write about constitutional law.
My tenure at Yale was interrupted by service as solicitor general of the United States. The solicitor general must approve any government appeals from adverse decisions in any court, federal, state, or local, and also, along with members of a relatively small staff, argues government cases in the Supreme Court. Contrary to what might be supposed, the Supreme Court is the most enjoyable court to argue before. The justices are prepared and engage in lively questioning. Not all courts are like that. There are few more disheartening experiences than arguing for half an hour or more to a judge who has not read the briefs and who sits silent and impassive throughout.
The solicitor general necessarily comes to know the justices' tendencies and abilities very well. There was then, as there is today, a wide range in both characteristics. Justice Byron White was perhaps the quickest intellectually, often seeing the point well before the advocate got to it. At the other end of that spectrum was Justice Harry Blackmun. The most ideological justice was probably William J. Brennan, Jr., who was also the most charming and friendly member, though his view of the judicial function was as different from my own as could be. He was the real leader of the Court in its adoption of deplorable tendencies. He was an affable man whose compelling attractiveness undoubtedly accounted for much of his influence with other justices. It seems likely that Brennan played a major role in converting Earl Warren, whose strong point was not conceptual thinking, from a moderate conservative into a judicial radical.
Robert Nisbet, a particularly insightful observer, stated the ideological situation in the law schools and the judiciary somewhat dramatically but with considerable accuracy:
The crusading and coercing roles of the Supreme Court and the federal judiciary . . . have created a new and important model for all those whose primary aim is the wholesale reconstruction of American society. . . . There are more and more judges, more and more lawyers, and more and more law students and professors who have entered easily into a state of mind that sees in the Supreme Court precisely what Rousseau saw in his archetypical legislators and Bentham in his omnipotent magistrate: sovereign forces for permanent revolution.
The ideological movement of constitutional law can be gauged by the changes in the casebooks used in the law schools. When I began teaching the subject in 1964, most of the casebooks concerned the structural features of the Constitution—separation of powers, federalism, the scope of Congress’s and the President’s powers, the legitimacy and rationale of judicial supremacy, and so on. Cases involving the Bill of Rights took up less than half the book. Indeed, to a modern reader, it is amazing that in Joseph Story’s Commentaries on the Constitution of the United States, written in 1833, the discussion of the first ten amendments, the Bill of Rights, occupies about one-fiftieth of the pages. In truth, the Bill of Rights, supplemented after the Civil War by the Fourteenth Amendment guaranteeing due process of law and the equal protection of the laws against incursions by state government, did not generate many cases until well into the twentieth century. The pace picked up with the Warren Court and has not slackened since. In the 1997 edition of a leading constitutional law casebook, Bill of Rights cases took up almost four times the space given to the structural Constitution, signifying an enormous shift from interest in the processes of government to the rights of individuals. The Bill of Rights took up about 2 percent of Story’s Commentaries and about 73 percent of the casebook. The American public regards constitutional law as little more than a list of individual rights, and they may be correct.
The reasons for this shift are no doubt various, including the multiplying confrontations of an increasingly pluralistic society. The judicial response has been to multiply rights. The most important reason for present purposes, however, was the 1954 discovery by the Supreme Court that it could order massive social change (the end of government racial discrimination in Brown v. Board of Education) unrelated, so the Court thought, to the meaning of the Constitution, and could prevail over resistance. I have argued elsewhere that Brown could have been justified on constitutional principles, but the crucial fact is that the Court did not think so. Encouraged to improve society further, it went on to ordain other major changes in governmental processes and in cultural and moral matters that were clearly not within the Court’s constitutional authority. Thus, as Lino Graglia puts it, “The first and foremost thing to know about constitutional law . . . is that it has very little to do with the Constitution.” The unpalatable truth is that the Court is making up the Constitution and has been for many years.
Courts below the Supreme Court have less freedom to legislate large new principles, but judges at any level can be consciously influenced by political considerations and personal predilections. In a case with large political implications, our court clearly lacked jurisdiction, but one judge, while privately admitting that to be so, placed his decision on factual grounds because that would leave him free to decide a future case, as a ruling of lack of jurisdiction would not. “ You never know,” he said, “what may come down the pike next.” That was lawlessness. A number of other examples come to mind. I have no doubt that my views and temperament influenced my judging, but that is inevitable, and the influence was never conscious. A number of my colleagues on the bench could honestly say the same thing, and there is a great difference between judges who, knowing it impossible to succeed entirely, do their best to eliminate views that have no proper role in reaching decisions and those who actively enforce their prejudices.
Judges belong to the class that John O'Sullivan first identified as “Olympians.” The political philosopher Kenneth Minogue described the philosophy of this class:
Olympianism is the project of an intellectual elite that believes that it enjoys superior enlightenment and that its business is to spread this benefit to those living on the lower slopes of human achievement. . . . Olympianism burrowed like a parasite into the most powerful institution of the emerging knowledge economy—the universities.
From there the infection spread to other culture-shaping institutions, most notably the Supreme Court which was accused, justly in my opinion, with reasoning backwards from desired results to spurious rationales. “[T]hat is a reality,” Alexander Bickel wrote, “if it be true, on which we cannot allow the edifice of judicial review to be based, for if that is all judges do, then their authority over us is totally intolerable and totally irreconcilable with the theory and practice of political democracy.” Yet that is the reality upon which judicial review rests today.
The Court’s dominant theme is now radical personal autonomy or moral relativism, signified by its emphasis on the liberty mentioned in the Due Process Clause. That reliance, though repeated scores of times, is utterly illegitimate. The clause was clearly meant to guarantee that no one be deprived of liberty without a fair process; it has nothing to say about a fair substance of the law. History as well as the constitutional text proves that. As John Hart Ely wrote, “there is simply no avoiding the fact that the word that follows 'due' is 'process.' . . . [W]e apparently need periodic reminding that ’substantive due process' is a contradiction in terms—sort of like 'green pastel redness.'” Unfortunately, periodic reminding does no good. The Court continues on its way, judging the substance of laws according to the justices' personal opinions of what liberties we should or should not enjoy. There could be no clearer demonstration that the Court regularly and frequently orders our lives changed with a power it has no legitimate claim to wield.
The question arises, why is the movement of judge-made constitutional law in the direction of extreme personal autonomy? It is, of course, the world view of the Olympians, but it has also come to be a feature of popular culture. Look where you will, autonomy erodes discipline everywhere. Religion is a field in many ways very much like law, and both have heresies that threaten to overcome orthodoxy. The phenomenon of “cafeteria Catholics” is well known: despite the Church’s doctrine, Catholic rates of contraceptive use and abortion are about the same as those of Protestants and Jews. When the Episcopal Church ordained a practicing homosexual as a bishop, appeals to scripture were brushed aside with amused disdain. A United Methodist lesbian minister was acquitted in a church trial of the charge that lesbianism was incompatible with Christianity, though it clearly is. The restraints of public decency have been abandoned on cable TV and are losing force on over-the-air TV and radio. No small part of these developments is due to the Court’s protection of obscenity and its marginalization of religion. But, equally, no small part of the Court’s behavior is due to the culture in which it operates. The real doctrines of the Constitution have no more chance to control the Court than do the real doctrines of the churches to control the behavior of its clergy and parishioners.
And why are legal arguments—in law schools as much as in courts—frequently invested with so much anger, an anger that also suffuses and distorts our politics? Law is unlikely, after all, to develop an intense emotional temperature unrelated to the wider world of political and social discourse. To say that the anger is due to the culture war is accurate but hardly an explanation. An explanation that I find eminently plausible is that there is always a segment of the population, usually the intellectuals, that requires meaning in life. The decline of religion, the loss of its redemptive vision, required a new transcendent principle. The obvious, the only, candidate was socialism.
Conservatism offers no comparable utopian goal. As Charles Krauthammer points out, the collapse of the socialist ideal has left Olympians with nothing except anger. Anger at the existing state of society was, of course, always an active ingredient in socialism. Some compensation for the loss of socialism is sought by various angry radicals in the extreme versions of feminism, environmentalism, animal rights, racial and gender preferences, homosexual rights, international control of American actions, and other causes. That anger characterizes the Democratic party, which is the party of the Olympians, and the activist groups that are what’s left of socialism.
The debate within the Supreme Court is usually, though not always, more genteel, but the same urge to reconstruct a highly imperfect society is apparent. The Supreme Court is enacting a program of radical personal autonomy, indeed moral chaos, piece by piece, creating new and hitherto unsuspected constitutional rights: rights to abortion, homosexual sodomy (and, coming soon, homosexual marriage), freedom from religion in the public square, racial and sexual preferences. None of these is justified by the actual Bill of Rights.
I could easily multiply examples. But the underlying philosophy of the Olympians—if it deserves so dignified a name as “philosophy”—is wonderfully summed up in the famous “mystery passage” that Justice Anthony Kennedy first articulated in an opinion reaffirming the made-up constitutional right to abortion. “These matters,” Justice Kennedy wrote for the Court,
involving the most intimate and personal choices a person may make in a lifetime [abortion, etc.], choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State. [emphasis added]
Although this passage instantly attracted some measure of the ridicule it deserved, Justice Kennedy chose to repeat it in Lawrence v. Texas (2003), which pretends to discover a constitutional right to homosexual sodomy. What other practices, we may wonder, are now “at the heart of liberty”? Kennedy’s aria about “the right to define one’s own concept of existence, of meaning,” etc., is not simply laughable intellectually; it also tells us something grim about our future, the Court, and a people that supinely accepts such judicial diktats.
Kennedy’s rhetoric is loaded with legal and cultural messages. First, and most obviously, the “mystery passage” demonstrates once again that today’s Bill of Rights jurisprudence has almost nothing to do with the Bill of Rights. Once more the procedural meaning of the Due Process Clause has been transformed into an unconfined substantive judgment by a majority of the justices. When new rights are not invented out of whole cloth, as in Lawrence, real rights are expanded beyond all recognition. The Court is now the Olympians' heavy artillery and panzer divisions in the culture war. The “mystery passage,” in particular, and the opinions on social and cultural issues, generally, demonstrate that a majority of the Court is willing to make decisions for which it can offer no intelligible argument. There is thus a sharp decline in intellectual honesty and the integrity of constitutional law. Constitutional law is no longer an intellectual discipline but a series of political impulses. I sometimes feel sorry for the editors of casebooks who accompany each opinion with a series of questions and observations about the doctrines the Court is laying down, modifying, refining, and abandoning. Doctrines don't matter; politics do.
The sanctity of these decisions is not just a litmus test for judicial nominees but an article of faith among Democratic politicians. One of the more dismaying sights of the year was all seven candidates for the Democratic presidential nomination standing before a feminist organization obsequiously pledging allegiance to Roe v. Wade. The Senate Democrats, along with a few Northeastern Republicans, will not confirm any nominee to the Supreme Court, and very few to any federal court, who does not express wholehearted support for that ghastly decision. To almost all Democratic senators, virtually unrestrained judicial activism in the service of the cultural Left has become the “mainstream.”
In the hands of the Court, radical individualism approaches judicial nihilism. Since each individual must be permitted to define meaning for himself, it must follow that there is no allowable truth, legal or moral. Yet, as Lord Devlin observed, “What makes a society of any sort is community of ideas, not only political ideas but also ideas about the way its members should behave and govern their lives; these latter ideas are its morals.” Partly as a consequence of the Supreme Court’s extra-constitutional adventures, we are losing our community of ideas about moral behavior. The result is a species of legal triumphalism: When law has disintegrated the bonds of society, its common moral assumptions, there will be nothing left but law to sustain us, and law alone cannot bear that weight.
Even the sense of the sacred is now a mocked and withered virtue. Today’s justices seem to have taken their inspiration from the radically libertarian John Stuart Mill of On Liberty—from the Mill, that is, who endorsed the view that “society has no business as society to decide anything to be wrong which concerns only the individual.” This Mill would have applauded the sentiment if not the logic of Kennedy’s “mystery passage.” As Gerturde Himmelfarb has pointed out, however, there was another, more sober Mill, a Mill who acknowledged that
In all political societies which have had a durable existence, there has been some fixed point; something which men agreed in holding sacred; which it might or might not be lawful to contest in theory, but which no one could either fear or hope to see shaken in practice. . . . But when the questioning of these fundamental principles is (not an occasional disease but) the habitual condition of the body politic . . . the state is virtually in a position of civil war; and can never long remain free from it in act and fact.
That describes our culture war to a T. Examples of the denigration of the formerly sacred are numerous: the symbol of the American flag, the idea of public decency, the centrality of religion, and even traditional marriage—all are clearly threatened if not, indeed, mortally damaged. Of all the institutions of society, perhaps only the judiciary and, most especially, the Supreme Court is still regarded as sacred. Certainly, a majority of the justices think of the Court that way, and three of them have been explicit about the sacrosanct nature of their office. In Planned Parenthood v. Casey (1992), three of the five justices who voted to retain a right to abortion wrote of Americans who would be “tested” by following the Court’s decision:
[The American people’s] belief in themselves as [a] people [who aspire to live according to the rule of law] is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then so would the country be in its very ability to see itself through its constitutional ideals.
That the people are “tested” by their willingness to follow the puerile moralizing of judges and that their “belief in themselves” is inextricably bound to their obedience to the Court is a piece of hubris that might have been expected to produce a backlash of outrage. That it did not is worth pondering.
Having established virtually unquestioned authority on the domestic front, judges, also without any warrant in the Constitution, appear to be contemplating roles as international statesmen. Justice Stevens, writing for four members of the Court in 1988, relied upon “the views that have been expressed by respected professional organizations, by other nations that share our Anglo-American heritage, and by leading members of the Western European community” to hold it a forbidden cruel and unusual punishment to execute a person for a capital crime committed when he was fifteen years of age. There have been other instances of reliance upon foreign decisions and statutes in interpreting the Constitution of the United States, but perhaps the most intriguing was Justice Steven Breyer’s statement in 1999 that he found “useful” decisions concerning allowable delays in executions by the Privy Council of Jamaica, the Supreme Court of India, and the Supreme Court of Zimbabwe. It is puzzling enough to contemplate what decisions handed down by foreign courts in the late twentieth century have to do with an American document written in the late eighteenth century; it passes understanding how the Bill of Rights drafted by James Madison is illuminated by the decisions of judges controlled by Robert Mugabe, the African tyrant and mass murderer.
The citation of foreign decisions in American constitutional opinions may be irritating, but it may also be only window-dressing: the Court would probably reach the same results without the aid of the Supreme Court of Zimbabwe. Still, Justice Sandra Day O'Connor suggests the justices will go further. She said in a recent speech that decisions by the courts of other countries could be persuasive authority in American courts. At a time, she said, when 30 percent of the United States’s gross national product is internationally derived, “No institution of government can afford to ignore the rest of the world.” It might seem that the one institution of government that should ignore the rest of the world is the one that derives its sole authority from a purely domestic source, the United States Constitution. It got worse. Justice O'Connor said the Court had found persuasive an amicus brief submitted by American diplomats saying that their jobs in foreign countries were made difficult by the practice of capital punishment in the United States. Rather than representing us to foreign nations, the diplomats were representing foreign countries in our Court. This internationalizing trend is so delightful to Olympians—though they might draw the line at Zimbabwe—that Linda Greenhouse could write with apparent approval in The New York Times that “it is not surprising that the justices have begun to see themselves as participants in a worldwide constitutional conversation.” It would be more accurate to say that they are participants in a worldwide constitutional convention.
Perhaps we should have seen this coming. For as Minogue pointed out, “We may define Olympianism as a vision of human betterment to be achieved on a global scale by forging the peoples of the world into a single community based on the universal enjoyment of appropriate human rights. . . . Olympians instruct people, they do not obey them.” And Olympians require constitutional courts to make certain their instructions stick. They may succeed. The idea of international law is catnip to some people, particularly to the intelligentsia. They may sell the notion to much of the public because it is often supposed that removing disputes from the arenas of diplomacy and force is to substitute high principle for the clash of crass interests. Those who make and ratify our treaties ought not to place authority in international courts without considering what we know about judges. Added to the usual tendency of courts with vague charters to enlarge their powers beyond anything anticipated by the law writers, there is the additional, and insoluble, problem of conflicting national interests and animosities, particularly animosity to the West in general and to the United States in particular. Nevertheless, the process of internationalizing law is taking place in our and in foreign courts without the consent of representative institutions.
In short, what we are witnessing is the homogenization of the constitutional laws of the nations of the West. And, since constitutional law is increasingly made by judges without reference to the actual constitutions they purport to be applying, there is developing an international constitutional common law. That is made possible by the fact that judges in almost all Western nations share Olympian values. Thus, we tend to see indifference or hostility to religion, the embrace of sexual permissiveness, the normalization of homosexuality, the creation of abortion rights, the classification of pornography and extreme vulgarity as protected free speech, hostility to traditional authorities, and special rights for favored ethnic minorities and, often, for women. All this leads to the Balkanization of society and the weakening of social discipline based upon a shared morality. It is difficult to say what the next developments in the judicial reconstruction of society will be. No one could have foreseen many of the developments just listed early in the twentieth century: many were not anticipated even ten or fifteen years ago. Who even a decade ago could have concluded that “homosexual marriage” was a right guaranteed by the Massachusetts state constitution (a document written by John Adams)?
It sometimes seems that there is nothing left for judges to invent. But then one recalls the cautionary tale of the patent office commissioner who resigned in the nineteenth century because he believed all significant inventions had already been made. We may rely upon the apparently endless creativity of judges to continue to find new socially disintegrating rights in various federal, state, and foreign constitutions.
Though it may seem a matter for wonder that the public and its elected representatives accept all this with so little resistance, they are in fact almost completely helpless. Those who devised and ratified the Constitution had no idea what courts could become and so they built no safeguards against imperialistic judges. The framers carefully provided means for Congress to check the President and for the President to restrain Congress, but they provided no means for either of those branches to check the judiciary. Impeachment is utterly impracticable. The Jeffersonians tried that in order to replace the Federalist Supreme Court and failed. Impeachment is almost never successful unless bribery is involved. Some commentators suggest reliance on the congressional power under the Constitution to make exceptions to the Supreme Court’s appellate jurisdiction. But even if the Court would accept the subtraction of its authority over a class of cases—and it is by no means certain that it would—the Constitution also provides that jurisdiction over federal constitutional questions lodges in state courts, many of which are at least as activist as the U.S. Court, and neither Congress nor state legislatures could remove it.
Only a draconian response to unconstitutional court decisions remains. The Massachusetts Supreme Judicial Court has ordered the state’s legislature to amend its statutory law to permit homosexual marriage. It is, or should seem, extraordinary that a court should order a legislature to amend and enact laws. The underlying decision is so self-evidently an act of judicial usurpation of the legislative function, and so wrong as a matter of constitutional interpretation, that it might seem that any self-respecting legislature would simply refuse to comply, and if it did comply, that the governor would veto the bill. So accustomed have we become to judicial supremacy, however, that such a course sounds revolutionary. Yet there must be some means of standing up to a court that itself is behaving unconstitutionally in very serious matters.
The classic hypothetical supposes that in 1860 the southern states had claimed a constitutional right to secede (they would have had a plausible argument) and that the Court, most of whose members were southerners, had agreed and ordered Lincoln to let the states go peacefully. Should Lincoln have obediently removed federal troops from Fort Sumter and ordered the armed forces not to interfere with the secession? The question answers itself. Some issues are too important for courts to determine national policy. We may disagree about which issues are that crucial, but that there must be a line beyond which courts must not go and demand obedience seems incontrovertible. At present, we have no criteria for drawing such lines. The Court has employed the political question doctrine to discipline itself, but that doctrine rests with the discretion of the Court.
It is understandable that no legislature or governor has taken such action in the past. (Lincoln provides an exception. During the Civil War he suspended the writ of habeas corpus before Congress, which alone had the authority to do so, acted to ratify what he had done.) We have become so used to the supremacy of the courts that it might be politically dangerous for legislators to stand against judges. Defying a court’s constitutional ruling, moreover, might set a dangerous precedent. The power of courts rests entirely upon moral authority granted by the perception that they stand on principle. Our sense of their fragility and fear of harming their capacity to do good restrains us. Thus the vulnerability of courts paradoxically renders them almost invulnerable. But what has happened in Massachusetts, and is likely to happen nationally, is so outrageous that a stand against an imperialistic court might be popular, and it would certainly be wise, because it would be a last-stand defense of the constitutional order.
The problems with all efforts to rein in runaway courts, including the appointment of restrained judges, are manifold, but two require mention. The first is that there is a large and powerful constituency for activist courts. The Olympians, who control virtually all the means of opinion formation, are also powerful in the Senate and will resist by any means available, including, as they are now demonstrating, the filibuster, to stop any effort to attempt to restrict courts to their proper constitutional function. In that they will be supported by a large portion of the non-Olympian public, which simply does not know what is in the Constitution. The judiciary, and most especially the Supreme Court, is held in higher esteem, with the possible exception of the churches, than any other institution, public or private. And this seems true in all Western nations where judges have acquired the power of judicial review.
One reason, oddly enough, is that the Court is held in high esteem precisely because it is unelected, unrepresentative, and unaccountable—which is to say that the justices are not seen as politicians. To survive and to get anything done, politicians have to make expedient compromises. Judges, or so it is mistakenly believed, are not politicians but men and women of principle, untarnished by compromise. The public does not stop to consider that compromise gives all the players some of what they want while judicial principle usually turns out to be a zero-sum game, and, moreover that the non-elite majority is usually the loser in ideological litigation. The preference for judges over legislators seems to signify a weariness with and distrust of democracy. If so, that is an ominous development and one encouraged by judges who have insisted not only upon their supremacy but upon their superior virtue. The appearance of other authoritarians stronger even than the Court would be an expensive cure for the ills of radical autonomy. We may come at last, though perhaps too late, to see the wisdom of Judge Learned Hand’s observation about “the fatuity of the system which grants such powers to men it insists shall be independent of popular control.”