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Polity and Rights Values in Conflict: The Burger Court, Ideological Interests, and the Separation of Church and State

Published online by Cambridge University Press:  16 December 2008

Ronald Kahn
Ronald Kahn
Affiliation:
Oberlin College
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Extract

I seek to counter a view commonly held by scholars that the Burger Court is pragmatic in its constitutional choices in contrast to the Warren Court, which is viewed as ideological. I propose a methodology to study the effects of process values and rights values held by members of the Burger Court on their decision making. To view its decision making as pragmatic, without awareness of underlying values of process and rights, results in an oversimplified view and leads to the unwarranted conclusion that the Burger Court is case-specific in making constitutional choices. I limit my discussion to separation of church and state cases, primarily in the area of aid to parochial education, because traditionally scholars have emphasized the pragmatic nature of Burger Court choices in this area. A finding of consistency of values in justices' orientations in this area suggests that the methodology reported here might have general utility in the study of Supreme Court decision making.

Type
Research Notes
Information
Studies in American Political Development , Volume 3 , Spring 1989 , pp. 279 - 293
Copyright
Copyright © Cambridge University Press 1989

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References

1. See Blasi, Vincent, The Burger Court: The Counter-Revolution That Wasn't (New Haven: Yale University Press, 1983)Google Scholar, for essays by major constitutional scholars supporting this view.

2. See Brigham, John, Cult of the Robe (Philadelphia: Temple University Press, 1987)Google Scholar, chaps. 1, 2. Brigham argues that behavioralism as a tenet practiced by political scientists is undercut by ideologies of authority upon which the Supreme Court relies within its institutional framework and which impose constitutive characteristics on the values that motivate judicial action. Also see Lustig, R. Jeffrey, Corporate Liberalism (Berkeley: University of California Press, 1982)Google Scholar, chaps. 6 and 8, for an excellent analysis of pragmatism and ideology.

3. See Kahn, Ronald, “The Burger Court, Boundary Setting, and State and Local Power,” Proteus 4 (1987): 37–46Google Scholar, on evidence that process-based norms supporting state and local authority are central in the jurisprudence of Justices Burger, White, Rehnquist, Powell, and O'Connor in the areas of federalism, First Amendment speech, standing to sue, and equal protection.

4. See Michelman, Frank I., “Forward: Traces of Self-Government,” Harvard Law Review 100 (1986): 4–77.Google Scholar Michelman describes the judicial role as imperial, enumerating “positive” and “negative” libertarian interests in the republican juridical tradition. In scope, these interests are based on assumptions by justices about process and rights values in the polity similar to the ones sketched below.

5. See Storing, Herbert, What the Anti-Federalists Were For: The Political Thought of the Opponents of the Constitution (Chicago: University of Chicago Press, 1981).CrossRefGoogle Scholar For an analysis of process and polity principles extending back to the founding period, see Kahn, Ronald, “The Intersection of Polity and Rights Principles on the Burger Court: Towards a Social Science of Jurisprudence,” Legal Studies Forum 11 (1987): 5–28.Google Scholar

6. See Spaeth, Herold J. and Teger, Stuart H., “Activism and Restraint: A Cloak for the Justices' Policy Preferences,” in Halpern, Stephen C. and Lamb, Charles M., Supreme Court: Activism and Restraint (Lexington, Mass.: D. C. Heath, 1982), 277–99.Google Scholar

7. See Ely, John Hart, Democracy and Distrust (Cambridge: Harvard University Press, 1980);Google ScholarTribe, Laurence H., American Constitutional Law, 2d ed. (Mineola, N.Y.: Foundation Press, 1988),Google Scholar and Constitutional Choices (Cambridge: Harvard University Press, 1985); Perry, Michael, The Constitution, the Courts, and Human Rights (New Haven: Yale University Press, 1982).Google Scholar Also see Kahn, Ronald, “Process and Rights Principles in Modern Constitutional Theory,” Stanford Law Review 36 (1984): 253–69,CrossRefGoogle Scholar for a discussion of the consequences of viewing the Constitution in primarily process terms.

8. See “The Rootless Activism of the Burger Court,” in Blasi, The Burger Court, 211–12.

9. See Greenstone, David and Peterson, Paul E., Race and Authority in Urban Politics (New York: Russell Sage Foundation, 1973), 125–26Google Scholar, and Peterson, Paul E., School Politics Chicago Style (Chicago: University of Chicago Press, 1976)Google Scholar, chap. 2, for explanations of how the “ideological interests” of big-city mayors for or against citizen participation led to choices that were not in their pragmatic electoral and organizational interests. Justices, professionally disciplined to think in terms of constitutional values, are far less prone than elected officials to make choices on raw pragmatic grounds.

10. 403 U.S. 602, at 623–24 (1971).

11. See Kahn, “The Burger Court, Boundary Setting, and State and Local Power,” for a review of the pluralist/critical-pluralist debate in modern political and constitutional theory.

12. 465 U.S. 668, at 701 (1984).

13. 433 U.S. 229(1977).

14. 413 U.S. 734 (1973); 444 U.S. 646 (1980).

15. 403 U.S. 602, at 664 (1971).

16. 465 U.S. 668, at 680, 686 (1984).

17. 473 U.S. 402, at 424–25 (1985).

18. 465 U.S. 668, at 689–90 (1984).

19. 413 U.S. 756(1973).

20. 463 U.S. 388 (1983).

21. 433 U.S. 229, at 263 (1977).

22. 473 U.S. 402 (1985).

23. 473 U.S. 402, at 409–10 (1985).

24. 473 U.S. 373, at 389 (1985).

25. 473 U.S. 373(1985).

26. 472 U.S. 38, at 80 (1985).

27. See Kahn, Paul W., “The Court, the Community and the Judicial Balance: The Juris-prudence of Justice Powell,” Yale Law Journal 97 (1987): 1–60.CrossRefGoogle Scholar Kahn argues that Powell has been too deferential to community values.

28. See Anthony Lewis, Foreword to Blasi, The Burger Court, ix.