The November 2012 issue of the Harvard Law Review, now online, features Pamela Karlan (Stanford Law School and contender for a Supreme Court nomination) writing the "Foreword," with two "Forum" responses by leading originalist scholars Randy Barnett (Georgetown Law) and Steven Calabresi (Northwestern Law):
Pamela S. Karlan: Foreword: Democracy and Disdain, 126 Harv. L. Rev. 1 (2012).
Randy E. Barnett: The Disdain Campaign
Steven G. Calabresi, The Constitution and Disdain
From the Foreword (Professor Karlan):
The current Court, in contrast to the Warren Court, combines a very robust view of its interpretive supremacy with a strikingly restrictive view of Congress’s enumerated powers. The Roberts Court’s approach reflects a combination of institutional distrust — the Court is better at determining constitutional meaning — and substantive distrust — congressional power must be held in check. That perspective colors the Court’s approach across an array of doctrinal areas, ranging from legal regulation of the political process itself to enforcement of constitutional rights.
The Supreme Court’s 2011 Term illustrates the consequences of dismissing democratic politics and democratic engagement in the articulation of constitutional values. The problem is not fundamentally that the Court overrides the choices of the people or their elected representatives. Indeed, several of the most striking examples of judicial disdain involve cases in which Justices voted to sustain the law being challenged, or in which the Court was called upon to mediate a conflict between different levels of government.65 Rather, the problem is that the Court’s decisions convey a broad message about the democratic process itself that may undermine public confidence in the democratic process going forward. The Court’s dismissive treatment of politics raises the question whether, and for how long, the people will maintain their confidence in a Court that has lost its confidence in them and their leaders.
To understand what we have lost, we need to recapture a sense of what it would mean to have a Court that respects the possibilities of politics, even as it acknowledges the pathologies of the political process. The Warren Court provides that model. Moreover, several central issues in the law of democracy that have preoccupied the Roberts Court during its first few Terms have their antecedents or counterparts in issues that confronted the Warren Court. Part I of this Foreword therefore describes key strands of the Warren Court’s approach to democratic politics and constitutional interpretation. The Warren Court’s most consequential decisions reflect the view that democracy requires a level of egalitarian inclusion, even in the face of competing property rights, that courts should welcome the political branches’ involvement in addressing constitutional values, and that authority to enforce constitutional values should be distributed broadly. Those strands are not unique to the Warren Court, of course. Each of them finds expression in decisions by prior and subsequent Courts as well. But the Warren Court represents a distinctively optimistic view of the potential of politics to serve constitutional values. Part II then turns to this Term to show how the Roberts Court has retreated from or abandoned each of these Warren Court commitments in favor of a less inclusive politics that gives far less leeway to the federal government to pursue a democratically derived conception of constitutional values. Finally, Part III reflects on the possible causes and consequences of this turn away from the promises of politics.
From Professor Barnett's response:
In the end, Karlan objects not to the Chief Justice’s decision [in NFIB v. Sebelius], but to his bad attitude. He was “grudging” and “expressed a basic distrust of Congress.” It is revealing, however, that Karlan then challenges the Chief Justice to continue to manifest this same bad attitude this Term when hearing the challenge to the Defense of Marriage Act (DOMA). “It will be interesting to see whether the Chief Justice’s suspicions carry over to the 2012 Term, when the Court is likely to take up the constitutionality of the federal Defense of Marriage Act, . . . where Congress, for the first time, created a federal definition of marriage.” I take it she thinks that such suspiciousness would be a good thing. Fair enough. Let’s be consistently skeptical of Congress. But then why should the left not be held to its professed respect for Congress when it passed DOMA, which was signed into law by President Clinton? Or its respect for the people of California when it enacted Proposition 8 denying the status of “marriage” to same-sex couples?
One suspects that it is restraint for thee, but not for me. Which is where discussions of judicial restraint typically end. So too with judicial disdain. Disdain is okay, so long as it is directed at the five conservative Justices on the Supreme Court when the four progressive ones are opposing them.
And from Professor Calabresi:
… Karlan simply does not understand the countermajoritarian difficulty. Individual rights cases like Lochner v. New York or Roe v. Wade raise a countermajoritarian difficulty, as Professor Alexander Bickel argued, because they forbid government at both the federal and state levels from doing something. This difficulty is inherent in almost all individual rights cases, including cases where the individual right is actually present in the text of the Constitution, as with the freedom of speech.
In federalism cases, however, the Supreme Court chooses which majority should govern with respect to an issue as between national majorities and state majorities. Judicial umpiring of federalism cases is thus not countermajoritarian. Suppose the Supreme Court had ruled that the federal health care law in National Federation of Independent Business v. Sebelius was unconstitutional on enumerated powers ground. Such a ruling would not have meant that similar state health care laws, like the one in Massachusetts, were unconstitutional. It would only have meant that Congress had exceeded the bounds of its limited and enumerated powers. When the Supreme Court polices federalism boundary lines, it is playing umpire between the national government and the states. The Court is choosing whether majorities at the national level or majorities in each of the fifty states have power to govern regarding a disputed issue. Playing umpire between the national government and the states is simply not countermajoritarian in any way, nor is it undemocratic. Instead, the Supreme Court is simply deciding which democratic majority — federal or state — our Constitution and history empowers to rule. …
The need for an umpire to police federalism boundary lines actually explains the emergence of judicial review in the first place in the United States, in Canada, in Australia, in India, in Germany, and most recently in the European Union. Federations need to have an umpire who can mediate between the nation and its provinces or states. Judicial review usually starts out by providing such a federal judicial umpire, and it then expands to offer federal judicial policing of individual human rights violations. Karlan is thus not only wrong to oppose Supreme Court policing of federalism boundary lines. She is actually attacking the paradigmatic cases that themselves gave rise to judicial review in the first place!