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July|August 2005

The People's Courts

By Lincoln Caplan

THE CONCEPT OF JUDICIAL REVIEW has been a linchpin of American law for more than 200 years. It's essential in our system of government for one branch to have ultimate responsibility for interpreting the nation's fundamental law and, as the court of last resort in the judicial branch, the Supreme Court plays that vital role. But the proper scope of that review is perennially controversial because of disagreement about how the power of unelected judges to strike down decisions of the political branches squares with our democracy.

One influential vision is that review by judges contradicts what the scholar Alexander Bickel called the "distinguishing characteristic" of this country's government: rule by the majority. A counterview advanced by Justice Robert Jackson is that such review is basic to democratic governance because it helps protect minorities from the tyranny of the majority. Important as they are, theories of constitutional politics like these have tended to eclipse the real workings of constitutional law.

Judges across the spectrum have long followed rules of self-restraint, which have been articulated by liberals as often as by conservatives. Whenever possible, the thinking goes, judges should defer to judgments of democratically elected bodies; defer to state and local over federal authority, since the state and local governments are the closest to the people; decide no cases they don't have to and, when they do decide, do it on the narrowest grounds; and adhere to judicial precedent unless there's good reason not to. These measures are intended to safeguard the law's stabilizing function in this society.

The common explanation for these rules is that they are an acknowledgment of the antidemocratic nature of judicial review. But that emphasizes the discord between the branches rather than their shared responsibility, and it misses a critical task for the judiciary—acting as a referee between the branches of government and, at key moments, stepping in to redress the democratic failures of other branches. In its own way, the judiciary is as democratic as the other branches.

THE FRAMERS STROVE TO ESTABLISH A NATIONAL GOVERNMENT that wouldn't trump the importance of state governments and to enact the will of national and state majorities while protecting minorities and individuals. They spoke of checks and balances, but the contending forces of those checks and balances needed to be managed. The Constitution, ratified by the states in a process that made it an expression of democracy, was intended to be the primary means of balancing that system of tensions. A key job of the judiciary is to "implement" that document, as Harvard Law School's Richard Fallon puts it, in particular by allocating responsibilities among the branches.

The Constitution often refers to the other branches ("Congress shall make no law respecting an establishment of religion") and the task of implementing those parts of the law falls mainly to officials other than judges. The courts act as referee, maintaining fair play between the president and Congress; the federal government and the states; one state and another; and the security of the nation and the liberty of individuals. When the process is working, the courts don't have to intervene. Instead, they hold themselves to a limited role, answering questions like, "Is the purpose of this statute reasonable?" rather than, "Should it be on the books?"

There are times, however, when courts must take a more aggressive approach. Most of the decisions that the courts actually review are made "by low-level officials and administrative agencies that lack any strong democratic mandate," according to Fallon. Even laws passed by Congress rarely represent "the truly considered judgment of a majority" of citizens about the Constitution's import. Because courts are removed from the tumult of politics and are in the habit of deliberating as the shaping of that law requires, they are set up to make better choices about the Constitution's meaning than the other branches.

It's out of fashion to defend the Warren Court because the court is said to have been activist and American politics now treats judicial activism as indefensible. But in its major rulings about the workings of the electoral process, for example, that court gave us powerful examples of the judiciary as an instrument of democracy. It addressed failures of the political branches in a way that redeemed democracy's meaning, by enfranchising more Americans, increasing the level of fairness in lawmaking through reapportionment, and invigorating political debate by strengthening free speech. Time and again, these examples remind us, the judiciary has helped the political branches live up to the principles of democracy.

Lincoln Caplan is the editor and president of Legal Affairs.

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