The Warren Court and American Politics
by Lucas A. Powe, Jr.
(Harvard University Press, 600 pp., $35)
The presidential campaign this year, the discussions of the Supreme Court have followed a familiar script. The Republican candidate has promised to appoint "strict constructionist" judges who will interpret the law rather than legislate from the bench. The Democratic candidate has promised to appoint justices "who understand that our Constitution is a living and breathing document" that includes rights, such as the right to privacy, "even though the precise words are not there." These are the same tinny slogans that candidates from both parties have repeated ever since President Nixon made an issue of the Miranda decision in the election of 1968. Instead of debating the merits of the Rehnquist Court, in other words, we are still debating the merits of the Warren Court.
In an important book, Lucas A. Powe, Jr. argues that the familiar debate about the merits of the Warren Court is, in fact, wrong. Far from being a group of liberal judicial activists who imposed their personal views on an unwilling nation, Powe argues, the Warren Court was, for much of its tenure, remarkably deferential to the political branches. The most significant Warren Court decisions of the early and mid 1960s--reapportionment, voting rights and civil rights, the early criminal procedure decisions, and even obscenity and school prayer--were not especially counter-majoritarian, Powe argues. Instead they were examples of the Court's efforts to bring recalcitrant local outliers, most notably in the South, into harmony with national values. The Court did this by casting itself as a partner rather than an adversary of Congress and the President, intervening only in cases where national majorities were thwarted from expressing their will. In Powe's account, it was only toward the end of the Warren era, in cases such as Miranda, that the Court provoked national opposition, by taking on national rather than local majorities.
Powe's book is animated by a great ambition. It seeks "to revive the genre of Supreme Court scholarship that focuses on the relation between the Court's decisions and national politics." By challenging our understanding of the Warren Court, moreover, Powe allows us to revise our understanding of the Rehnquist Court. For the current justices have proved to be the children of Warrenism in the most unfortunate sense: they have absorbed the imperious Warrenist rhetoric of the 1960s without Warren's instinctive deference to Congress and the president.
But how did the Warren Court come to be defined as a group of judicial legislators who repeatedly thwarted the political branches? In the late 1950s, Powe contends, this misrepresentation came from two unreliable and unlikely allies: acolytes of Felix Frankfurter and racist Southern congressmen, both of whom were united by qualms about the legitimacy of Brown v. Board of Education. Frankfurter's academic and judicial defenders--mostly notably Learned Hand, in his Holmes Lectures at Harvard, published as The Bill of Rights, in 1958, and Alexander Bickel, in The Least Dangerous Branch, in 1962- -viewed the Brown Court as having defied the wishes of a national majority in a premature attempt to impose racial justice by judicial fiat. By the early 1960s, these qualms already appeared to be overstated. As Lyndon Johnson's landslide victory in 1964 demonstrated, it was primarily local Southern majorities that clung to segregation; and by paving the way for Congressional action, the Court helped to drag the recalcitrant South into an emerging national consensus about the evils of apartheid.
The academic attacks on the Warren Court provided a patina of respectability for Southern congressmen, who were determined to challenge the legitimacy of Brown by whatever means necessary. At the beginning of 1956, two-thirds of the Southern representatives in the House signed the Southern Manifesto, which denounced Brown as "a clear abuse of judicial power" and " pledged to use all lawful means to bring about a reversal of this decision contrary to the Constitution." The following year, four decisions handed down on June 17, "Red Monday," questioned the power of Congress and the states to investigate suspected communists; and this gave the South a pretext for cloaking its opposition to Brown as part of a broader attack on liberal judicial activism. "How much longer will this Congress continue to permit the Supreme Court to usurp the power of Congress, write the laws of the land, destroy States' rights and protect the Communist Party?" asked Congressman George Andrews of Alabama in a crisp encapsulation of the Southern position. And as Congress debated bills to strip the Supreme Court of its jurisdiction over security matters, William Rehnquist, a former Supreme Court clerk and a young lawyer in Phoenix, sounded a similar note in U.S. News and World Report, where he criticized his fellow Supreme Court clerks for showing "extreme solicitude for claims of Communists and other criminal defendants, expansion of federal power at the expense of state power."
The jurisdiction-stripping bill sponsored by Southern Democrats and conservative Republicans narrowly failed in the Senate, owing to the opposition of Majority Leader Lyndon Johnson, whose presidential ambitions required him to distance himself from his fellow Southerners. Powe also suggests that the attempt to portray the Court as a group of fellow-traveling communists failed because it was unconvincing: the Warren Court had been notoriously slow to challenge McCarthyism in 1955 and 1956, when it upheld much of the loyalty oath program. After the civil libertarian decisions of 1957 provoked congressional criticism and a convenient switch by Frankfurter, the Court hastily retreated. By 1960, the Court had once again upheld the constitutionality of most of the domestic security program. Far from usurping the power of Congress, as the Southerners claimed, the Warren Court proved to be sensitive to prevailing sentiments in Congress. It intervened only in cases--such as Brown and the reapportionment decisions--when Congress was unable to act because of a seniority system that allowed Southern committee chairmen to thwart majority will.
Powe's explanation for the fact that the Warren Court instinctively cast itself as a partner rather than an adversary of Congress is that the justices in the majority had played a similar role ever since the New Deal. Between 1937 and 1952, when the Court sustained everything that the president did, these justices saw themselves as part of the national Democratic coalition; and because the president and Congress were working in harmony, the Court was never forced to choose between the two branches of government. This political reality, combined with the healthy suspicion of courts that legal elites embraced after the crisis of 1937, ensured judicial deference to the political branches. The steel seizure case in 1952, in which influential members of Congress opposed President Truman's efforts to seize the Youngstown steel mills, split the Democratic party and the Court. But with the election of John F. Kennedy, the president and Congress again were working in unison, and the Warren Court enthusiastically viewed itself as partner of the new governing coalition. "The best description of the period is that all three branches of government believed they were working harmoniously to tackle the nation's problems," Powe writes. "It was simply a matter of determining which institution was best suited to handle a specific problem, and each went forward in its own way knowing the others also were seeking complementary results."
Powe's goal is more to describe the Warren Court's behavior than to justify it; and he never offers a theoretical account of why it is appropriate for the Supreme Court to cast itself in explicitly political terms, deferring to Congress as a matter of course, and presuming to harmonize local outliers with national values. Such justifications exist, but they are open to various objections. The New Deal Court, for example, did not view its deference to Congress and the President as a form of unthinking judicial abstinence. Deference in the 1940s and 1950s was part of a broader theory about the legitimacy of judicial review in a democracy. Owing to the dangers of unelected judges substituting their own policy preferences for those of democratically elected legislatures, the theory went, judges should generally defer to the political branches and hesitate to strike down federal and state laws. But deference might not be appropriate in cases affecting clearly defined constitutional rights, such as the First Amendment, or politically vulnerable groups that could not protect their own interests in the political process.
Powe suggests that the Warren Court never had a very coherent theory; but if it had, the theory surely would have looked something like the one I have just outlined. Brown could be justified on the grounds that racist Southern congressmen were blocking a national response to segregation at a time when segregation was becoming an international embarrassment. The decisions striking down Victorian regulations on pornography and contraception could be justified on the grounds that local majorities actually supported sexual liberalization, but Catholic leaders were preventing these majorities from expressing their will. And in the rare cases in which the Warren Court struck down federal laws--in cases involving restrictions on communists--these laws conflicted with clear First and Fifth Amendment values.
Yet powe's account raises as many objections as it answers. It is hardly clear, for a start, that when Brown v. Board of Education was decided in 1954, it was an example of the Court's bringing the South into line with a national consensus about segregation: as Gerald Rosenberg and others have demonstrated, national views about segregation did not shift measurably until the North was mobilized by the civil rights movement, nearly a decade later. Moreover, an account of the New Deal and the Warren Court that focuses exclusively on the court's efforts to unclog the channels of democracy cannot justify a case such as Brown, in which the Court thwarted democracy in the name of substantive constitutional values, such as equality. Still, if Powe does not provide a fully convincing justification of judicial behavior that often seemed more driven by political results than by judicial philosophy, he performs a great service by reminding us that the Court, in many cases, was less counter-majoritarian than it is commonly assumed to be.
Powe persuasively argues that the most important decision of what he calls " history's Warren Court," which lasted from the 1962 term to Warren's retirement in 1969, can be justified as an effort to unclog, rather than to thwart, the expression of majority will. Consider Baker v. Carr, the reapportionment case that Warren considered "the most important case of my tenure." Everyone recognized the injustice of rotten boroughs, and rather than second-guessing Congress and the state legislatures the Court was making them more democratic. The decisions upholding the Civil Rights Act and the Voting Rights Act were equally deferential to Congress's power to define and to enforce constitutional rights. The early criminal procedure decisions, which affirmed for the poor the constitutional right to court-appointed counsel and to a court-provided transcript, resonated with basic American ideas of fairness; and other decisions actually expanded the power of the police to conduct pat downs on the street without a warrant and to search and seize mere evidence of a crime. The first school prayer decision, forbidding New York public schools from requiring the Regents Prayer, provoked resistance in the South, but it came to be accepted in the West and the Midwest, where school prayer was less entrenched. President Kennedy, who liked Warren personally and was committed to church-state separationism, endorsed it unequivocally. A subsequent decision forbidding readings of the Lord's Prayer was embraced by Catholic and mainstream Protestant leaders, who viewed denominational exercises as an affront. When the Court struck down an anti-evolution statute, the national press was united in its praise.
In 1964, Barry Goldwater tried to make an election issue of the civil rights, criminal procedure, and school prayer decisions, but he was dramatically rebuffed. Indeed, the Court viewed Johnson's landslide election as a vindication of its bold leadership in Brown. "Never before in American history," Powe writes, "has a Court been told it was so right." The following year, in Griswold v. Connecticut, when the Court struck down a nineteenth century Connecticut law forbidding married couples from using contraceptives, the decision was hailed even by Catholics, three quarters of whom agreed in a contemporary poll that advice on contraceptives should be freely available. As Powe puts it, "the South was an outlier on segregation; the Northeast on contraception; and the Court was tolerating no outliers."
If the warren Court's decisions were so popular in the early 1960s, how did the Court, by the end of the decade, come to be perceived as an arrogant usurper of national will? The answer, according to Powe, may be found in its controversial criminal procedure decisions: Mapp v. Ohio, imposing the exclusionary rule on the states; Massiah v. U.S. and Escobedo v. Illinois, restricting the use of confessions without a lawyer present; and above all the infamous Miranda v. Arizona. The earliest criminal procedure cases had been primarily about race, and their impact had largely been confined to the South: they were efforts to bring racist Southern police forces in line with national standards, and as such they were either unnoticed or nationally popular. But when the Court, in Mapp, changed the law in half the states and held that illegally seized but reliable evidence had to be excluded, the decision had the effect of freeing guilty defendants across the country. (No wonder that Abe Fortas, the future justice, called Mapp "the most radical decision in recent times.") Escobedo, which invalidated the use of confessions obtained during police interrogation after a suspect asked for a lawyer, condemned a system employed by all fifty states: the historian John Blum has observed that "Escobedo raised the storm against the Court to gale force."
At this point Powe's chronology is open to question. The most controversial criminal procedure cases of what Powe calls "history's Warren Court" did not occur at the end of the era but at the beginning and in the middle of it. Mapp was decided in 1961, Miranda in 1966. Far from beginning in a deferential spirit and ending in an imperial one, the Warren Court showed elements of deference and aggressiveness throughout the 1960s. But there is no doubt that Miranda sent its critics over the top because of its unapologetically legislative quality. The Court's overconfidence in prescribing remedies for violations of constitutional rights was characteristic of some of the later decisions of the Warren era, such as the busing and reapportionment cases, which summarily held that there was a single solution to the problems of desegregation and reapportionment, and that solution was uniquely intelligible to five justices on the Supreme Court. ("Even some liberal-minded persons, admirers of the modern Supreme Court, find themselves stunned," wrote Anthony Lewis of The New York Times after the decision in Lucas v. Colorado, which required equipopulational districts in both houses of Congress.)
Powe argues that at the beginning of the 1960s the Warren Court decided cases on the basis of values that most Americans (with the exception of recalcitrant outliers) shared, such as overcoming segregation, Victorianism, malapportionment, and the use of the third degree. Yet there was no national consensus about Miranda. As crime rates rose at the end of the 1960s (largely because of changing demographics), politicians found it convenient to blame the Supreme Court. Lyndon Johnson's lame duck nomination of Abe Fortas to be chief justice went up in smoke, as Strom Thurmond, the former segregationist whose court-stripping bills had failed a decade earlier, successfully demonized Fortas as the emblem of the Warren Court's coddling of criminals. By 1968, sixty three percent of a poll's respondents agreed that the Court was too easy on crime. And when Richard Nixon pledged in 1968 to appoint justices who would stand with the "peace" forces rather than the criminal forces, his attacks on the Court resonated far more successfully than Barry Goldwater's had only four years earlier.
Nixon's attempt to reverse the legacy of Warrenism failed. The Burger Court, as Vincent Blasi put it, turned out to be the counter-revolution that wasn't. Indeed, if there was a single decision that vindicated the criticisms of the Warren Court's fiercest critics--that the Court was legislating from the bench and thwarting the will of the political branches--it occurred on Burger's watch rather than on Warren's watch. In 1973, Roe v. Wade became the pink elephant of constitutional politics--the case that all presidential candidates, in every election of the past three decades, have found it impossible not to discuss. And Roe showed none of the deference and none of the sensitivity to national political sentiments that characterized the most important decisions of Warren's tenure. As Donald Grier Stephenson Jr. notes in Campaigns and the Court, abortion was hardly an election issue in 1972. Neither the Democratic nor the Republican platforms mentioned it, and the Democrats actually considered and rejected a pro-abortion minority plank. When the Court struck down the Texas and Georgia abortion laws in Roe, ten weeks after Nixon swamped McGovern, the Court's position was at odds with the laws of forty-six states and with both of the leading presidential candidates.
But it was Roe that made the Supreme Court into an electoral issue: it forced pro-choice and pro-life advocates to focus their energies on Supreme Court confirmation battles rather than on legislative battles, and it transformed the Democrats into the party of abortion rights, and it cemented the Republicans as the party of social conservativsm. Beginning with the election of 1980, in which Ronald Reagan called Roe "an abuse of power worse than Watergate," Republican presidential candidates pledged to appoint justices who would not only reverse Roe but would also repudiate the legacy of judicial activism that Roe and Burger-Warrenism embodied. When it came time for Bill Clinton to make two appointments, he chose justices who claimed to be similarly skeptical about sweeping exercises of judicial power.
Nearly thirty years after Roe, however, the Rehnquist Court seems in many ways even less deferential to the political branches than the Warren Court, whose activist legacy it pledged to repudiate. How could this have happened? A conservative legal movement arose in the 1980s based on the proposition that judges should exercise self-restraint by interpreting the Constitution in light of the original understanding of its framers and ratifiers. Although this movement defined itself in opposition to the Warren Court, it became clear, by the late 1990s, that it was really a response to the New Deal itself. Far from urging general deference to the political branches, the justices appointed by Reagan and Bush were comfortable with sweeping exercises of judicial authority to reign in the power of the federal government and to resurrect the power of the states. Between 1941 and 1995, the Supreme Court did not strike down a single federal law as exceeding Congress's power to regulate interstate commerce. Between 1995 and 2000, however, the Court struck down all or part of twenty-five federal laws, often on grounds of federalism or the separation of powers. In the process, the Court made clear that it was willing to question the meaning of the constitutional revolution of the New Deal. While liberals of the progressive and New Deal era had urged the courts generally to defer to Congress and the state legislatures on the grounds that politicians, rather than judges, were entitled to represent popular will, the most distinctive quality of the conservative justices of the Rehnquist Court seems to be a general disdain for the political branches--for Congress, for the president, for the administrative agencies, even for juries.
The Warren Court was largely composed of politicians and statesman--none of the nine men who decided Brown had any prior judicial experience before their appointment to the Court--while the Rehnquist Court is composed of former academics and lower court judges who have neither experience nor sympathy with practical politics. The result is a Wizard-of-Oz quality, most evident in the recent opinions reaffirming Roe and Miranda, the pillars of Burger- Warrenism. The decisions adopted the same imperious tone that characterized Roe and Miranda themselves, but they lacked the spirit of deference toward the political branches that, as Powe demonstrates, was found in the Warren Court's more convincing work.
When it reaffirmed Roe in 1992, for example, the Court refused to say whether or not it thought that the case was correctly decided in the first place. Nor did it bother to provide convincing arguments for why Roe should be retained, except for the fact that the Court had spoken and the Court must be obeyed. Moreover, the decision reaffirming Roe adopted the most grandiose strains of the Warren Court's vision of itself as a synchronizer and mirror of national will: the Court implausibly called the contending sides in the abortion debate "to end their national division by accepting a common mandate rooted in the Constitution." By the Constitution, however, the Court meant nothing more than its own contestable interpretations of the Constitution: in a really egregious passage, it reflected that "the character of a Nation of people who aspire to live according to the rule of law ... is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals."
This rhetoric of judicial supremacy first surfaced in Cooper v. Aaron in 1958, when the Warren Court ordered Governor Faubus to obey a district court's desegregation command. For fear of being defied, the Court lectured Faubus about his duties to obey the Supreme Court's interpretations of the Constitution, equating the Court's decisions with the text of the Constitution itself. The Court declared not only that its interpretations of the Constitution bound other branches of government, but also that it was " supreme in its exposition of the Constitution." As Powe puts it, "the Constitution, the Court asserted, meant exactly what the Court said it meant." In the Nixon tapes case in 1974, the Burger Court extended this doctrine of judicial supremacy from Congress to the executive branch, denying the president's authority to make his own decisions about the constitutional scope of executive privilege, and declaring that the confidentiality of the president's deliberations must yield to the judiciary's need for the tapes.
But the warren and Burger Courts reserved their assertions of judicial supremacy for moments of national emergency, when the states or the executive branch threatened to defy the Court's decisions. The Rehnquist Court, by contrast, routinely adopts an imperious tone--the Constitution is what we say it is, period--even when striking down relatively insignificant, and symbolic laws, such as the Religious Freedom Restoration Act, whose constitutional infirmity was that Congress had presumed to interpret the First Amendment's guarantee of free exercise of religions more expansively than the Court had interpreted it. "The primary authority to interpret" the Constitution remains in the judiciary, wrote Justice Kennedy in City of Boerne v. Flores in 1997, stressing that Congress had the authority to remedy only those violations of constitutional rights that had been recognized and approved by the Supreme Court. Indeed, in his decision striking down part of the Violence Against Women Act, Rehnquist had the effrontery to cite Cooper v. Aaron itself. The invocation of Little Rock in an opinion invalidating a federal remedy for gender-motivated violence was rhetorically unfortunate, and it showed just how effortlessly this Court has come to view its own judgments as constitutionally infallible.
In its decision reaffirming Miranda, the Court took a similarly self- aggrandizing tone. Instead of approaching the opinion in a spirit of humility, Rehnquist essentially said that Miranda would remain on the books because the Court said so, and the Court alone was the sole arbiter of the Constitution. In a telling aside, Rehnquist added that Miranda had come to be "part of our national culture," as if the popularity of a decision was a constitutional argument for it. A less self-regarding Court might have shown respect for the competing constitutional views of the president and Congress. In his opinion, for example, Rehnquist refused to acknowledge the fact that, for thirty-two years, presidents and attorney generals from both parties had consistently refused to enforce the Congressional law that purported to overturn Miranda because of bipartisan questions about its constitutionality.
Cooper v. Aaron had at least represented an alliance of the Court and the president against a recalcitrant state majority; but the Rehnquist Court invokes the rhetoric of that decision to challenge the prerogatives of Congress itself. Although Rehnquist had expressed dissatisfaction with the Warren Court's broad view of Congressional power as long ago as 1957, federalism was a little noticed part of the Republican counter-revolution until 1995, when the Court struck down the Gun-Free School Zones Act as exceeding Congress's power to regulate interstate commerce. In more recent cases, the Court has resurrected the shadowy--and textually unmoored-- doctrine of "sovereign immunity" to deny citizens of one state the right to sue another state for violations of federal anti-discrimination and copyright law.
It is not clear whether these cases are merely examples of judicial muscle- flexing or whether they are a prelude to a sustained judicial assault on the post-New Deal administrative state. But whether or not this assault materializes, the Rehnquist Court's cases resurrecting states' rights are arguably more aggressive than the Warren Court's cases scaling back states' rights. If Powe is to be believed, the Warren Court acted with sensitivity to congressional prerogatives and only intervened in cases where local outliers, primarily in the South, were resisting national values. By contrast, the Rehnquist Court's federalism opinions are suffused with a refusal to acknowledge Congress's legitimacy as a representative of national authority. And when the Rehnquist Court defers to national opinion, as it did in upholding Miranda, there turns out to be a significant difference between the "populism" of the Warren Court and the "populism" of the Rehnquist Court. The former believed that Congress was the best judge of popular will, while the latter sometimes seems to view itself the best judge of popular will. How, precisely, can this openly political vision of the judicial role can be reconciled with the justices' purported philosophy of judicial restraint? This they have never bothered to explain.
If earl warren, the sunny Californian, showed an earnest reverence for Congress, William Rehnquist, the sardonic Arizonan, takes the opposite view. This may be partly a matter of temperament, but it also reflects a broader shift in political and academic wisdom about the legislative process itself. In the legal academy, where four of the current justices began their careers, public choice theory has called into question the claim that the president and Congress deserve deference as legitimate representatives of popular will. Instead, the political branches are now seen as captives to special interests, and the laws that they pass are regarded as cynical examples of horse- trading rather than attempts to serve the public interest. If the Warren Court viewed politics as a noble calling, the Rehnquist Court seems to view it as a forum for perjurers and clowns.
Why has the Rehnquist's Court's high-handed assault on congressional power not provoked Congress to launch a counterattack on the Court? Previous instances of aggressive judicial activism--in the Jacksonian, Progressive, New Deal, and Warren eras--provoked equally aggressive congressional responses; but there are no billboards calling for the impeachment of William Rehnquist. One possibility is that the laws that the Court has invalidated-- the Violence Against Women Act, the Brady Bill, the Religious Freedom Restoration Act--are symbolic laws without a strong national constituency. Few people strongly object to them, but few people strongly support them, except the interest groups to whom they pander. The Court, in other words, may have made an accurate calculation that it can chip away around the margins at these symbolic laws without making anyone very upset.
In this sense, the Rehnquist Court might be seen to be taking a gamble very similar to the Warren Court's gamble. Perhaps national opinion has shifted in a more libertarian direction. Perhaps many people share the Court's view that federal laws that hand out symbolic victories to the various constituencies of identity politics--women, religious minorities, and so forth--offend a conception of liberal citizenship that can plausibly be read into the Constitution, even if its historical roots are thin. Sanford Levinson has noted that almost all the federal laws that the Court has struck down since 1995 were passed by a Democratic Congress before the Republicans took over the House in 1994. The Rehnquist Court seems to have the same disdain for laws passed by the old Democratic majority that, as Arthur Schlesinger Jr. argued, the conservative justices on the New Deal Court showed for the pre- Roosevelt Congress: there is a sense that the justices look on the old Congress as simply benighted, as captured by special interests or untrustworthy for other reasons. Reagan, Bush, and Clinton had run for president on the premise that the era of big government was over; and perhaps the current conservative justices, on some level, view the midterm elections of 1994 as popular vindication for this view. These same justices might view a victory by George W. Bush as an even more dramatic vindication, and, joined by new colleagues appointed by Bush, might then launch a determined effort to dismantle the legacy of the New Deal.
Of course, such an unapologetically political account of the role of the judiciary is open to the same objection that the Warren Court raised: why should judges follow the election returns? Robert McCloskey, an earlier scholar of the Court who combined insights from political science and law, insisted that judicial decisions were legitimate if they were at least plausible according to the conventional tools of interpretation, and if they were in tune with the prevailing legal consensus. But consensus is often in the eye of the beholder; and only the election of 2000 will determine whether the Rehnquist Court's effort to resurrect limits on federal power will be a brief departure from the unbroken period of judicial deference to Congress that has prevailed after 1937 or the beginning of the first serious attempt since that time to question the boundaries of the modern regulatory state.
The simplest explanation for the Rehnquist Court's ability to combine high- handedness with popular prestige is that the current justices are the children of Warrenism in one important respect: they carefully calibrate their decisions so that they reflect popular opinion rather than challenge it. The conservative positions without a national consistency--such "outliers" as resurrecting school prayer, allowing the regulation of first-term abortions, and challenging the administrative state at its core--have been shunted off to the dissents of Thomas and Scalia, and the politically moderate justices who control the Court seem ready to put their finger to the wind at the crucial moments when it comes time to reexamine decisions, such as Miranda and Roe, that have come to be, as Rehnquist said, "part of our national culture."
What has been lost in the wake of the Rehnquist Court's rhetoric of judicial supremacy is a competing constitutional tradition of judicial humility. In this tradition, the Supreme Court shows respect for the concurrent authority of the president, Congress, and the state legislatures to interpret the Constitution in ways that may differ from the nine justices. As John Yoo has argued, this tradition was originally associated with John Marshall, who rooted the Supreme Court's power of judicial review in Marbury v. Madison in its authority to decide cases rather than to resolve national controversies. Marshall's vision left Congress and the president ample room to engage in constitutional interpretation of their own, and to use their authority to challenge the decisions of the Court. Thus Thomas Jefferson, who insisted that each branch was supreme within its own sphere of authority, refused to enforce the Alien and Sedition Acts out of a belief that they were unconstitutional. And Abraham Lincoln similarly insisted that Supreme Court decisions such as Dred Scott should apply only to the parties in the case and not to other citizens who disagreed.
By abandoning this modest, case-deciding vision of the Supreme Court's authority, and by asserting the Court's exclusive authority to interpret the Constitution, Yoo argues, the Warren Court vastly increased the importance of Supreme Court appointments. But again there is a difference. The early Warren Court, as Powe reminds us, exercised its newly asserted exclusive authority to interpret the Constitution with sensitivity to the competing views of Congress and the President, and tried to overturn decisions by state legislatures only when all three branches of the national government agreed. The Rehnquist Court, by contrast, has arrogantly exalted its own interpretations of the Constitution above the competing views of the president and Congress.
Of course, all three branches of national government will not always agree: the harmony of the Warren era appears to have been the exception rather than the rule. But although the Court should never allow the president and Congress to violate clearly defined constitutional rights, it should give Congress substantial leeway to define and to enforce its own conception of constitutional rights, even when this vision is more expansive than that of the Court. This deference to the competing constitutional views of Congress was clearly anticipated by the framers of the Reconstruction Amendments to the Constitution, who saw Congress, and not the Court, as the primary enforcer of the constitutional guarantee of equal protection of the laws. But deference to Congress is a virtue that the imperious Rehnquist Court has refused to display.
It is unfortunate, in this election year, that neither of the presidential candidates has chosen to embrace a less grandiose vision of judicial authority, one founded on a decent regard for the competing constitutional views of the political branches. This might be a vision of judicial humility for an age of dissensus, anchored not in romantic respect for the wisdom of Congress and the president but in respect for their constitutional prerogative to interpret the Constitution in ways that may differ from the Supreme Court. A deferential Court would generally uphold the acts of the political branches, even when it disagreed with them, unless the president and Congress had violated constitutional rights and limitations that were too clear to ignore. It is not surprising, perhaps, that the Court has managed to avoid a political backlash against its high-handedness by keeping its finger to the political winds. But have the political branches become so cowed by the Court's grandiose assertions of its own supremacy that they have lost the will to stand up for themselves?
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.