T J HE UDICIARY AND A D MERICAN EMOCRACY SUNY series in American Constitutionalism Robert J.Spitzer,Editor T J HE UDICIARY AND A D MERICAN EMOCRACY A B , LEXANDER ICKEL C D , THE OUNTERMAJORITARIAN IFFICULTY AND C C T ONTEMPORARY ONSTITUTIONAL HEORY Kenneth D.Ward and Cecilia R.Castillo,editors State University of New York Press Published by State University of New York Press,Albany © 2005 State University of New York All rights reserved Printed in the United States of America No part of this book may be used or reproduced in any manner whatsoever without written permission.No part of this book may be stored in a retrieval system or transmitted in any form or by any means including electronic,electrostatic, magnetic tape,mechanical,photocopying,recording,or otherwise without the prior permission in writing of the publisher. For information,address State University of New York Press, 194 Washington Avenue,Suite 305,Albany,NY 12210–2384 Production by Kelli Williams Marketing by Michael Campochiaro Library of Congress Cataloging-in-Publication Data The judiciary and American democracy: Alexander Bickel,the countermajoritarian difficulty,and contemporary constitutional theory / edited by Kenneth D.Ward and Cecilia R.Castillo. p.cm. – (SUNY series in American constitutionalism) Includes bibliographical references and index. ISBN 0-7914–6555–1 (hc : alk.paper) 1. Political questions and judicial power–United States. 2. Bickel, Alexander M. 3. Consititutional law–United States–Philosophy. I. Ward, Kenneth D. II. Castillo,Cecilia Rodriguez. III. Series. KF8748.J83 2005 347.73'12–dc22 2004066245 10 9 8 7 6 5 4 3 2 1 C ONTENTS Introduction 1 Kenneth D.Ward Chapter 1: Principle,Prudence,and Judicial Power 9 Robert F.Nagel Chapter 2: The Jurisprudence of Constitutional Regimes: 23 Alexander Bickel and Cass Sunstein Mark Tushnet Chapter 3: Alexander Bickel and the New Judicial Minimalism 45 Christopher J.Peters and Neal Devins Chapter 4: Democratic Constitutionalism: The Bickel-Ackerman 71 Dialectic David M.Golove Chapter 5: The Countermajoritarian Difficulty: Tradition Versus 105 Original Meaning Stanley C.Brubaker Chapter 6: An Empirical Analysis of Alexander Bickel’s 123 The Least Dangerous Branch Terri Peretti Chapter 7: Bickel and the New Proceduralists 147 Kenneth D.Ward Chapter 8 Constitutional Theory and the Faces of Power 163 Keith E.Whittington List of Contributors 191 Index 193 v I NTRODUCTION Alexander Bickel is perhaps the most influential constitutional theorist of the last half century.He sought to explain how judicial review, a nondemocratic institution,could be justified in a government that de- rives its legitimacy from majority rule.He describes the problem as the countermajoritarian difficulty,and with this memorable phrase he sets it at the center of constitutional theory’s scholarly agenda.Moreover,The Least Dangerous Branch,his seminal work,became a model for approach- ing the problem. Bickel used recent U.S. Supreme Court decisions to illustrate how Justices can decide cases in a manner that contributes to a legitimate system of democratic government.Nonetheless,theorists have rejected Bickel’s defense of judicial review. Indeed, for a considerable time Bickel became the symbol of past failures to solve the counterma- joritarian difficulty.Theorists would criticize Bickel before venturing fresh solutions to the problem or putting forth claims about why such so- lutions would inevitably fail.Writing about ten years after Bickel’s death, Anthony T.Kronman thought it curious that a scholar of Bickel’s stature would have so little influence on the work of his successors.1 This book addresses the interesting question of Bickel’s legacy. Does Bickel have any significance for contemporary debates forty years after the publication ofThe Least Dangerous Branch? Nine scholars ad- dress this question.They consider different aspects of Bickel’s work and apply a variety of disciplinary perspectives.Although their contributions indicate that Bickel continues to capture the attention of theorists,an answer to our question remains elusive. The contributions illustrate how the countermajoritarian difficulty and Bickel’s response to it have animated and continue to animate prominent work in constitutional theory: the proceduralisms of John 1 2 Kenneth D.Ward Hart Ely and Jeremy Waldron;the republicanisms of Bruce Ackerman and Cass Sunstein;and the originalisms of Raoul Berger,Robert Bork, and Keith E. Whittington. Moreover, as in the broader literature in constitutional theory,the particular Bickel who emerges depends on the theorist who engages him.Some view his commitment to constitutional principle as licensing judicial activism; others see it as legitimating a contested status quo. Some join the quest to identify principles that judges can enforce in a government committed to majority rule;others emphasize the role the judiciary might play in a constitutional democ- racy.Lastly,the contributions reflect concern about whether Bickel ad- dresses the right issue when he frames the question of judicial review, and whether the debate concerning this question has been detrimental to the broader constitutional culture. Perhaps we should attribute Bickel’s elusiveness to the breadth of his project.This breadth contributes to the difficulty of specifying exactly what it is that Bickel argued.His argument encompasses both abstract claims about how to conceptualize judicial authority and concrete strategies about how the Court should minimize conflicts with other institutions of government. He describes the Court not only as a dynamic force distilling society’s principles and introducing them into the political process,but also as a conservative force em- bodying and sustaining society’s traditions. Thus, we can see how Bickel became a target for both conservative and liberal theorists. Bork,for example,attacked Bickel for justifying the Court’s lawmak- ing role, while Skelly Wright criticized Bickel for arguing that the Court should avoid most important policy questions.The tensions in Bickel’s argument remain evident in the contributions to this book just as they have been present in the wider discussion of his place in constitutional theory. The contributors emphasize three aspects of Bickel’s work.First, he frames the problem of justifying judicial review from a perspective that focuses on constitutional adjudication.He asked why a nonelected judiciary should be able to substitute its judgment for that of elected in- stitutions.In so doing,he puts the Court at the center of constitutional theory.This volume reflects the tension between theorists who define the Court’s role in terms of the particular principles of constitutional law that it enforces and those who assess the Court as a single compo- nent in a broader system of constitutional government. Bickel’s focus on the Court explains the second aspect of his work. He believed that the judiciary contributes to a legitimate system of gov- Introduction 3 ernment by enforcing those constitutional principles that elected insti- tutions tend to ignore.This claim leads scholars to assign great impor- tance to questions of constitutional interpretation,and,consequently, the debate about the countermajoritarian difficulty has evolved into a quest to identify judicially enforceable principles. According to this view,the Court gains democratic legitimacy by enforcing principles that should supplant those advanced by elected institutions.Scholars looked to reason,nature,and tradition to defend potential principles.They also defended principles that they claimed were supported by popular con- sensus;they sought consensus in the political community’s past,present, and even its future. The third aspect of Bickel’s argument follows from his recognition of limits on the Justices’authority to resolve disputes about the meaning of the Constitution.He asserted that the principles that judges enforce must be acceptable to a contemporary majority. He examined tech- niques the Court might use to delay the enforcement of an asserted principle,mainly jurisdictional devices that allow the Court to avoid is- suing a decision.Such delay could advance a broader discussion among the Court,elected institutions,and the public and thereby help citizens to embrace the principle the Court seeks to enforce.Bickel described these techniques as “passive virtues,’’and the core of The Least Danger- ous Branchillustrates their use. Robert F.Nagel’s contribution reflects the first aspect of Bickel’s work. He addresses the question of how we should resolve disputes about the meaning of the Constitution, and describes The Least the Dangerous Branchas one of the intellectual fountainheads of the judi- cial activism that characterized the post-Brown Supreme Court.He rejects Bickel’s defense of broad judicial authority to resolve such dis- putes;he contends that Bickel exaggerated the Court’s willingness to subject itself to the discipline of the passive virtues. Nagel suggests that Bickel underestimated the attraction of the reformist principles that animated both the Warren Court and Bickel’s defense of its ju- risprudence.He believes that the nature of one’s commitment to such principles would inevitably weaken the restraining force of the passive virtues.Therefore,in contrast to early critics who criticized Bickel’s discussion of the passive virtues for sacrificing principle to prudence, Nagel contends that Bickel’s concern for principle spawns unre- strained activism. Mark Tushnet also considers Bickel’s argument from a perspective that emphasizes the Court’s role in resolving conflicts about the meaning