The Supreme Court and the Judicial Process
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Description
This book is about the state of our endangered rights on the eve of George Orwell's nightmare vision of a world without them. But a mere catalogue of endangered rights, no matter how accurately drawn or passionately defended, would provide only a snapshot of a more complex phenomenon. What we call “rights” are, after all, not concrete objects which can be made to sit still for an enduring portrait-verbal or otherwise. Rather, they are grand and ambiguous abstractions enmeshed in an institutional matrix which gives them precise articulation and provides for their enforcement against the recalcitrant. In a very real sense, all rights depend for their ultimate meaning and effect on an institutional structure calculated to provide the individual with an Archimedes' lever to invoke them. If the lever is a strong one, rights are strong as well; if the lever is weak, rights are largely illusory, whatever words may be used to describe them. Witness the hollow grandeur of the rights entombed in most totalitarian constitutions. Thus, before turning to the endangered rights themselves, we should consider the health of the principal means of articulating and enforcing individual rights in our legal structure-the uniquely American phenomenon of judicial review. Since individual rights are rarely self-defining and are never self-enforcing, any political system which claims to recognize rights must make a fundamental choice about who is to define and enforce them. The choice is between officials whose principal job it is to carry out the political desires of the electorate and a more insulated set of officials who function independently of the wishes of the politically powerful. Many societies, following Rousseau's conception of popular sovereignty and deference to majority will, have chosen to give politicians—usually legislators or administrators-the last word in deciding the scope of individual rights. We, on the other hand, have chosen to give precise meaning to the concept of individual rights by using insulated officials—usually judges—whose job it is to construe a purposefully ambiguous document called a Constitution. When de Tocqueville noted the extent to which social issues are translated into legal questions in American life, he was merely reporting the fact that our system uses courts, not legislatures, as a principal means of articulating and enforcing individual rights. Using insulated judges instead of legislators to define and enforce individual rights has one important practical advantage and one obvious theoretical drawback. On the plus side, when the issue is whether an individual possesses a right to do as he or she wishes regardless of the desires of the politically powerful, it doesn't make much functional sense to allow officials beholden to the politically powerful to decide the question. Close cases would, under such an arrangement, almost always be resolved against the individual. Allowing judges who are relatively insulated from public opinion to define the scope of individual rights is thus far more likely to result in the sustained and vigorous enunciation of such rights than a system which relegates the task to representatives of the politically powerful. On the negative side, the very effectiveness of an insulated judge as a generator of individual rights is in tension with our deeply felt respect for democratic decision making and commitment to majority rule. Of course, a good deal of the tension can be relieved by recognizing that some of what passes for majority rule in any democracy is in fact one transient minority or another which has managed to attain temporary political ascendancy. Allowing judges to check such a powerful transient minority in the name of an existing consensus concerning individual rights is hardly a serious challenge to democratic political theory. That is especially true since even federal judges appointed for life are not without a democratic imprimatur. They are generally drawn from the political world; they are appointed by the president and must be confirmed by the Senate. As between such a judge and a local police chief, is there much doubt which has the better democratic pedigree? Occasionally, however, the judiciary does trump a genuine political majority in the name of individual rights. When that happens, majority rule and judicial review may come into real conflict. But even in such situations, much of the conflict is false, since the reviewing court is generally acting on behalf of a “discrete and insular minority” that was unable to participate effectively in the democratic process in the first place.
Source Publication
Our Endangered Rights: The ACLU Report on Civil Liberties Today
Source Editors/Authors
Norman Dorsen
Publication Date
1984
Recommended Citation
Neuborne, Burt, "The Supreme Court and the Judicial Process" (1984). Faculty Chapters. 1294.
https://gretchen.law.nyu.edu/fac-chapt/1294
