Posted: January 4, 2005
eeking Justices will give heartburn to conservatives who are infuriated by the Senate's treatment of judicial nominees and bewildered by a Republican-dominated Court's continuing support for pet projects of the cultural Left. The book does provide some valuable perspectives on issues as far apart as the Rehnquist Court's federalism decisions and the history of the confirmation process. And it emphasizes one crucial fact, which is that the American people approve of much of what the Supreme Court does and are exceedingly accepting of its behavior even when they do not. Unfortunately, these contributions are offset by a pervasive intellectual complacency that takes most of the interest out of what should be a fascinating set of issues.
Comiskey, an associate professor of political science at Penn State University, argues that the modern practice of energetic ideological review of Supreme Court nominees by the Senate is serving a useful function. It has, he claims, revealed highly predictive information about the nominees' inclinations and thus has helped to keep the Court's decisions generally in line with popular preferences. He says, quite plausibly, that this is an important check on a court that makes national policy in so many important areas, especially when the public seems unwilling to use the other political tools that are available to constrain judicial behavior. Furthermore, the book claims that robust review has not entailed the political and jurisprudential costs so often alleged. It has not unduly diverted attention away from substance to scandal; it has not interfered with the president's appointment power; it has not compromised the integrity or quality of judicial decision making; and it has not undermined the legitimacy of the Court.
Readers will immediately suspect that behind this happy face is a mind encumbered by the tedious political bias that infects so much of academia. As is often the case, phrasing gives away the game. Comiskey refers to the Warren Court's "alleged" liberal activism. Robert Bork's critique of the modern Court's performance, by contrast, made him "a revolutionary conservative" (no "alleged" necessary). The Rehnquist Court, Comiskey reassures us, has not been "abhorrent" or "unduly conservative." Senators have an inherent interest "in keeping virulent judicial supremacists off the Court," and so Justices O'Connor and Kennedy (who in Planned Parenthood v. Casey made the most authoritarian claims for judicial power in American history) sailed through the confirmation process as the moderates that Comiskey says they are.
In the same vein, President Ford nominated "the superbly qualified and ideologically moderate [John Paul] Stevens." Ruth Bader Ginsburg had "outstanding credentials" and had acquired "a reputation as a 'non-ideological moderate.'" So, too, Stephen Breyer, who was "universally regarded as well qualified" and, needless to say, was a moderate. Clarence Thomas, it is probably unnecessary to add, had "slim" qualifications, "extreme" political views, and "questionable" judicial temperament.
One trouble with unexamined political bias is that it tends to drain the complexity and richness from its subject. Take, for example, Comiskey's description of Justice Ginsburg as a jurisprudential moderate. This is certainly the way she was presented by her backers during her confirmation hearings, despite her record as a feminist litigator. It is not an altogether indefensible assessment, at least as applied to her opinion-writing style. But the interesting question is whether Ginsburg's style has been used to achieve, and even to disguise, radical substantive goals. Ginsburg herself has recognized that the cumulation of apparently narrow cases invalidating various forms of sex discrimination has accomplished an overall result equivalent to amending the Constitution. She has actually written about how judicial opinions that avoid broad doctrinal formulations can appear modest and thus reduce political objections to the Court's work. Moreover, some of her opinions, such as the one invalidating male-only education at Virginia Military Institute, can be seen as truly radical in their doctrinaire imperviousness to facts as well as in their practical implications. But Comiskey ignores all this and takes Ginsburg's alleged moderation at face value.
Similarly, his conclusion that Robert Bork was a jurisprudential revolutionary is based on an uncritical acceptance of the accusations and arguments made by Bork's opponents during his confirmation hearings. Again, the problem is not that there is no basis for the charges. The problem is that Comiskey is uninterested in the complexities that surround them. It is true, as the book claims, that if the Court were to roll back all of what Bork's academic writings criticized, it would be out of step with popular preferences as measured by opinion polls. But it is by no means clear that Bork would have been in favor of such radical revisions. Little in his record as a sitting judge indicated such intentions, and during his hearings he denied that he would try to implement all the ideas put forward in his academic writings.
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In any event, the main charge made against Bork by prominent academics like Ronald Dworkin and Lawrence Tribe was that Bork was outside the jurisprudential—not the political—mainstream. Supposedly he rejected ideas concerning which all respectable judges and scholars have long agreed. Supposedly he had no judicial philosophy at all.
Now, these charges need to be critically evaluated. It is by no means clear that powerful critiques of the abortion decisions or even of the right to privacy more generally were outside the jurisprudential mainstream. Respected scholars, like John Hart Ely, and responsible jurists, like Justice Byron R. White, wrote scathing critiques of the Court's creation of a right to abortion. And debate about the propriety of a free-roving mandate to protect unenumerated rights has a long and honorable intellectual heritage.
Comiskey reports that the Senate's rejection of Bork helped to protect the Court's legitimacy because it resulted in the appointment of the more moderate Anthony Kennedy. He specifically invokes as evidence for this proposition the Court's eventual decision in Casey not to overrule Roe v. Wade. It is true that a majority of the Justices in Casey, including Kennedy, argued in rather fevered terms that overruling Roe would damage the Court's capacity to embody American constitutionalism. But the often-noted extravagance of this argument cries out for something better than uncritical reiteration.
Comiskey's ideological complacency even drains much of the interest from his major thesis, which does in fact concern an astonishing phenomenon. The puzzle begins with the fact that the Supreme Court has been dominated by Republican appointees for more than three decades. Moreover, as he recognizes, even the appointees of Democratic presidents have presented themselves as political and jurisprudential moderates. An obligatory position for all these appointees as they stand for confirmation is that judges should not legislate or otherwise engage in judicial activism. And these assurances are not thought to be politically mandatory because of trivial considerations. They are the result of decades of highly controversial decisions that protected Communists in government employment, prohibited official school prayers, radically altered police practices, brought disorder and even violence to school districts across the country in the name of desegregation, extended the right of free speech to billboard advertisements and flag burning, and elevated to a hallowed constitutional freedom the right to abort a child or engage in homosexual sodomy.
While these decisions—and many, many more—were producing dismay, anger, frustration, and violence in the political arena, they were producing confusion and consternation in the academic world. There, of course, it was thought to be a high duty to find some theory of constitutional interpretation and of the judicial role that would legitimate the Court's adventures. But despite energetic efforts by brilliant thinkers, no such theory emerged. Even the best efforts were criticized to devastating effect. If there really is an academic mainstream on this question, it consists in the fact that there is no consensus on what, except supposedly good results, justifies the Court's behavior.
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Protestations about the need for judicial restraint, then, have become the political norm as a consequence of decades of political and intellectual dissatisfaction. At the same time, judicial aggrandizement continues and, in many ways, expands. This is a significant paradox. Comiskey, however, takes pervasive judicial control over explosive moral and political issues as a given and terms it "moderation." Indeed, his central claim is that the rampant judicialization of American politics is in line with what people want. On the whole, the long promised "virulent" retrenchment has never really taken place because the Senate has forced presidents to respect prevailing public opinion.
Anyone familiar with the state of the modern academy will understand how Comiskey can insouciantly regard the astonishing judicial aggrandizement of recent decades as an exercise in temperance. What is ideologically congenial is normal, what is normal is unexamined, and what is unexamined constitutes the mainstream. Comiskey acknowledges that the Court has been seriously out of step with public opinion on religion, term limits, and some free speech issues. He can, however, treat these as unimportant because, according to opinion polls, the public approves of the Court's record otherwise, including on abortion and homosexuality. But this leaves out the factor of intensity. Issues like the elimination of school prayer and the protection of flag burning provoke truly deep resentments and anxiety. A few decisions of this kind may be more significant than many decisions that generate mild approval.
A second consideration entirely missing from Comiskey's form of majoritarianism is federalism. On many issues, stretching from abortion to vagrancy, the Court's decisions conflict with policies enacted in most of the states, and in that sense are anti-majoritarian.
Finally, he pays too little attention to qualitative aspects of judicial opinions. In particular, the Court can announce and explain its decisions in ways that invite participation by political institutions in the interpretive process or it can preempt and condemn such participation. In several places, Comiskey acknowledges that in recent years the Court has increasingly insisted on its own supremacy and has, correspondingly, condemned political influences on constitutional interpretations. But with his ideological blinders on, he takes this as an unremarkable fact of life.
It is true that the Court's results are not as far from mainstream preferences as conservatives sometimes think. It is also true that the Senate's advice and consent function must be conducted diligently if the Court is not to become entirely insulated from political life. But it requires a studious inattention to the obvious to conclude, as Comiskey does, that all is well with the main process available for exercising democratic control over the Court.