Judicial activism or constitutional democracy?

I don’t have a lot to add about the Sotomayor pick. If there’s one area where you should be able to trust Obama, it’s in constitutional law. She seems pretty good from the relatively little I’ve read about her. There’s no doubt that the White House has put a lot of thought and preparation into this, following nearly two decades of crazy scandal about appointments. And the Republicans are onto a loser if they spend much time fighting the appointment without finding any cause to do so other than that she’s liberal, she’s a woman and she’s a Latina.

It’s tempting to see the post-Clarence Thomas era of Supreme Court fights as a testament to the politicization of a formerly rigorously scholastic and juridical enterprise, the transformation of the Court from a place where the nation's best lawyers adjudicated on purely legal questions to a political vehicle for making laws behind the back of congress. The truth is not quite so simple. Certainly, something quite profound has changed since the 1930s, but the claim that this is a product of simply judicial power-grabbing is not especially persuasive. Rather, its changing decisions have been as much expressions of broad changes in the character of American life as they have reflected any shift in the balance of power between branches of government.

When the Supreme Court struck down much of FDR’s ambitious reform legislation in the early 1930s, FDR responded in 1937 by attempting to pack the court with a series of friendly appointees and force the retirement of some of the older conservatives. The effort failed, and though it contributed to the emergence of a more acquiescent court by the late 1930s it grievously damaged FDR’s previously unassailable reputation. Americans, who – as many presidents seem to have forgotten – take the independence of the court extremely seriously, strongly objected to his apparent disregard for constitutional procedure. In short, both court and presidency seemed cowed after the conflict; neither seemed to have gained power over the other.

Since then, the pattern has remained equally unclear. The post-FDR era in court politics was undoubtedly starkly different to the conservatism of much of the nineteenth and early twentieth century. This shift was unwittingly accelerated by Eisenhower’s decision to appoint Earl Warren to head the Court. But it’s hard to say that the new tone of the Court was a product of a more expansive definition of its role, rather than simply a product of the fact that the Court itself became more liberal in an era of Democratic party dominance in the executive branch and increasing liberalism in American life.

Conservatives, on the losing end of this shift, have tended to explain all unwelcome decisions as a sign of congressional activism. This is a neat argument. First, the constitution is a venerated document, and Americans are naturally suspicious of the idea of loosely interpreting it. Second, there are clear procedures for altering the law laid down in the constitution which do not require un-elected judges to take the power upon themselves. Third, seeing things this way gives the impression that conservative appointees are not political in the way that liberals are, but are simply impartial defenders of the constitution.

But as clever as the argument is, it’s hard to conclude that the court really has been running away with its power since the 1930s, rather than simply reflecting the slower shifts in American political life from conservatism to liberalism and back again. Judges are still appointed by the executive in consultation with legislature, and most of the time (though not always) they conform broadly to the expectations of those who appointed them. Whilst the Court has the power to deliver a bloody nose to the president, the fact remains that the best way to get a friendly court is to make sure your party gets elected not just once, but for an entire generation. In this sense, in a strange way the Supreme Court ends up sometimes seeming more democratic than the other branches of government, which tend to be in the game only for the short haul.

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