The following piece is a part of NULR of Note’s “Bring Back The ‘90s” initiative, aimed at exploring the evolution of legal thinking over the past three decades. For more, click here.
Writing in 1990, not long after the conclusion of Robert Bork’s Supreme Court confirmation hearings, I noted the growing—although not uncontested—consensus that senators should attempt to shape constitutional meaning by aggressively inquiring about the nominee’s beliefs about interpretive methods, legal philosophy, doctrines, and even specific cases. I lamented the fact that in operation, this consensus resulted in enhanced influence for the legal professoriate over whether to consent to a nomination rather than potentially useful political advice to the nominee. In keeping with the claims of ascendant legal realism as well as the empirical findings of political scientists like Robert Dahl, politicians were openly attempting to influence the Court’s constitutional decision-making. They were doing so through legal predictions about likely votes on specific issues rather than by bringing to bear political information and judgment about the larger effects of the Court’s role on our everyday lives, our institutions, and our culture.
When the Bork nomination was rejected, intentional political influence over constitutional interpretation still seemed questionable because it is obviously in tension with the founding myth, famously enunciated in Marbury v. Madison (1803), that the courts cannot enforce statutes that are inconsistent with the Constitution because the Constitution is itself a law that has superior status. To the extent that politics creates constitutional meaning, the American Constitution is not a written law but, like the British Constitution, a reflection of political practices and beliefs. However, unlike the tradition-based British Constitution, the American Constitution is to a significant degree a reflection of current majoritarian aspirations and preferences.
Today a chorus of reverential appeals to our devotion to the “rule of law,” and especially to the Constitution as our fundamental law, somehow coexists with what has become the accepted practice of a highly politicized and sophisticated process for selecting and confirming judicial nominees. Indeed, a comprehensive study by Keith Whittington, published in 2019, concludes—with some refinements and qualifications—that Dahl was right even in 1957 to say that the Supreme Court’s constitutional decisions only rarely and briefly frustrate the will of engaged national majorities. The title of Whittington’s monumental study, Repugnant Laws, perfectly captures the deep dissonance in our attitudes about politicized law. Whittington chose the word “repugnant” because in Marbury, Chief Justice John Marshall used the word to refer to statutes that conflict with the higher, written law. How nice that our current political preferences, at least as measured by national majorities, so often turn out to be consistent with determinations written into law decades and even centuries ago.
Many sophisticated ideas have been offered to explain this rather surprising state of affairs. Political partisans of all stripes tend to believe that their influence over the selection and confirmation process is consistent with constitutionalism because the interpretive philosophies that they champion lead to accurate or, at least, to morally correct interpretations of the original document. Deviations then occur when the Court is influenced by one’s political opponents. Scholars, including both Dahl and Whittington, consider more serious explanations, including the possibility that the meaning of the original Constitution is sufficiently open to allow for a range of correct interpretations—a plausible possibility but one that must be resisted by those who believe that a necessary characteristic of a “law” is that its meaning be ascertainable so that it is possible to conform one’s behavior to its requirements.
In any event, it is not entirely clear whether the selection and confirmation processes—no matter how sophisticated—are actually the explanation for the strange concordance between the political will of national majorities and the interpreted meaning of the Constitution. How a Justice will behave once on the high court is notoriously difficult to predict. Neither the Burger Court nor the Rehnquist Court behaved—to put it mildly—as conservative Republican sponsors had expected. Despite the more thorough screening that has been in use in more recent years, other majoritarian and institutional influences may allow for important surprises.
What does seem clear is that, while the character of modern confirmation hearings has varied depending on a range of factors, including the existing balance of power on the Court, the trend is ominous, especially for anyone who would prefer serious explorations of the Court’s overall role and effects. Merrick Garland, of course, was denied any hearing at all, and both Clarence Thomas and Brett Kavanaugh endured highly politicized personal attacks.
Ugly politics is, it appears, one of the consequences of the Court’s inflated role in our political life. Perhaps that sobering fact—that inadvertent piece of “advice”—will come home to the Justices from their experiences in the confirmation process. If so, their attention will necessarily be drawn past the academy’s concentration on national majoritarianism to the Court’s interference with political decision-making at the state and local level.
Robert F. Nagel is Emeritus Professor of Law at the University of Colorado School of Law. His articles have appeared in numerous academic journals as well as in the Wall Street Journal, New Republic, Washington Monthly, Public Interest, and First Things. He is also a Fellow of the American Academy of Arts & Sciences.