Changes in Judicial Roles: The Elusiveness of Simple Explanatory Models

In his chapter in this volume, Martin Shapiro observes that “‘The mighty problem’ of constitutional judicial review” raises a major empirical challenge: “when, where, and why do the powers that be…allow a handful of judges without purse or sword to get away with making major policy decisions?” (Ch. 16 in this volume, p. 380). In recent decades, the salience of these questions has increased. More political regimes have established constitutional courts. More courts have overruled legislation and executive orders. Thus, more judges have played important roles in politics, policy, and governance. However, in some countries, courts have been cautious about engaging in judicial review or, when they have done so, have been politically attacked and driven to retreat. In other regimes, political authorities have preempted or limited the exercise of judicial review, preventing an expansion of judicial roles in governance.

Faced with this variation, scholars interested in the political roots of judicial power have focused on three related aspects of Shapiro's when, where, and why questions. Under what conditions are courts granted (or do they themselves adopt) judicial review powers and significant remedial authority? Under what conditions do courts exercise those powers assertively? Under what conditions can courts exercise those powers both assertively and successfully (i.e., achieving compliance with their rulings)?

To say that a constitutional court has played a significant role in governance of a nation implies that the court's decisions are consequential – that they make a difference, have an independent effect on politics, public policy, and power relationships, or on social or economic life, the treatment of minorities, criminal suspects, political or religious dissidents. This essay, accordingly, discusses the roles played by the U.S. Supreme Court in the twentieth century, asking to what extent and in what ways the Court was a consequential political actor.

Lawyers and legal scholars take it for granted that the U.S. Supreme Court, which has exercised the power of constitutional judicial review for more than 200 years, has been a politically consequential court. To many political scientists, however, the Court's actual influence is an unsettled empirical and theoretical question. Scholars often referred to as regime theorists argue that constitutional courts only rarely, if ever, have a powerful independent effect on government and society (Dahl, 1957; Rosenberg, 1991; Peretti, 1999; Pickerell & Clayton, 2004; Whittington, 2008). Regime theorists see high courts not primarily as politically powerful principals but as agents whose decisions in politically significant cases generally reflect the preferences of the political leaders who appointed them. Even if judges are personally inclined to make bold, politically unpopular rulings, it is argued, prudence usually impels them to act strategically, avoiding decisions that important political leaders are likely not only to denounce but to resist, reverse, or retaliate against (Epstein, Knight, & Shvetsova, 2001). In this view, therefore, when judicial decisions do have broad social or political consequences, it is because powerful political leaders or parties approve of (or at least accept) those decisions and – just as importantly – are willing to implement them. In regime theory, the judges may appear to be the engineer driving the legal or constitutional train, but political leaders have built the track and selected the engineers, thus deciding what direction they want the train to go.

In early nineteenth-century America, Alexis de Tocqueville (1835) famously observed, “[S]carcely any political question arises…that is not resolved, sooner or later, into a judicial question.” That may have been a considerable exaggeration at the time, but today, the dynamic Tocqueville highlighted marks many constitutional democracies in which independent courts are vested with powers of judicial review. In such countries, political actors, organizations, and ordinary individuals who become enmeshed in political conflicts have strong incentives to frame their desires as constitutional or statutory claims and ask courts to vindicate them.

As a result, in the early twenty-first century, courts have become versatile actors in the governance of many constitutional democracies, and judges and justices play multiple roles in politics and policymaking. *As many observers have noted, politically consequential courts have emerged in new democracies from Korea to South Africa to Brazil and beyond; courts in more established democracies such as Canada and New Zealand have been given or have assumed more power to protect individual rights and invalidate government policies; and both the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) have taken on dramatic roles in European governance.

In Total Justice (1985), Lawrence M. Friedman describes a dramatic change in American legal culture. Friedman defines legal culture as ordinary people's views about what law is, should be, and should provide. Over the last century or so, he contends, American legal culture has come to include a widespread demand for “total justice.” In turn that demand has generated thoroughgoing change in the law and legal life of the country. One strand in the legal culture of total justice is “a general expectation of recompense” for arbitrarily inflicted devastating losses, particularly accidentally imposed personal injuries. A second strand is the “expectation of fair treatment.” Friedman argues that Americans increasingly expect nondiscriminatory treatment and some version of “due process of law” when institutions deny them some important benefit. They expect fair treatment not only in courts and government agencies but also “in all settings: in hospitals and prisons, in schools, on the job, in apartment buildings.”

In its focus on popular legal culture, Total Justice reiterates a theme that runs through the entire library of Friedman's books and articles: At least in the United States, developments in popular legal culture, much more than the theorizing of legal scholars and judges, are the primary drivers of legal change. In turn, the evolution of legal culture is driven primarily by social changes that affect the day-to-day texture of life. Thus the most powerful insights in the book concern the social changes that have engendered a popular legal culture attuned to total justice.

With all the turmoil surrounding david kay's comments on the failure to find stockpiles of biological and chemical weap-ons in Iraq, it is time to return to first principles, and to ask the question: Was it right to go to war?

Critics of the war, and of the Bush administration, have seized on the failure to find stockpiles of weapons of mass destruction in Iraq. But while his weapons were a key part of the case for removing Saddam, that case was always broader. Saddam's pursuit of weapons of mass destruction was inextricably intertwined with the nature of his tyrannical rule, his serial aggression, his defiance of international obligations, and his undeniable ties to a variety of terrorists, from Abu Nidal to al Qaeda (a topic we will not cover in detail here, rather referring readers to Stephen F. Hayes's reporting in this magazine over the past year). Together, this pattern of behavior made the removal of Saddam desirable and necessary, in the judgment of both the Clinton and Bush administrations. That judgment was and remains correct.

It is fashionable to sneer at the moral case for liberating an Iraqi people long brutalized by Saddam's rule. Critics insist mere oppression was not sufficient reason for war, and in any case that it was not Bush's reason. In fact, of course, it was one of Bush's reasons, and the moral and humanitarian purpose provided a compelling reason for a war to remove Saddam.