It Didn't Start With Earl Warren

In a recent Washington Post op-ed piece, Joseph Califano, who was Jimmy Carter's Secretary of Health, Education and Welfare, and who is now a Democratic Party eminence grise, considered how closely the Senate should scrutinize President Bush's federal judicial nominees. It has long been the case, Califano argued, that the Senate has paid considerable deference to a president's choices for the federal bench, confirming virtually all nominees who possessed sufficient professional qualifications. Today, however,"professional qualifications alone should no longer be considered a ticket to a seat on the bench." Instead, the Senate should conduct a"searching review" of nominees' views on a range of public policy issues. This is necessary because for years now"partisan gridlock and political pandering for campaign dollars have led to failures of Congress and the White House . . . to legislate and execute laws on variety of matters of urgent concern to our citizens. As a result, the federal courts have become increasingly powerful architects of public policy, and those who seek such power must be judged in the spotlight of that reality."

Califano's analysis is a variation upon an argument that conservatives have been making since the heyday of the Warren Court. In their view, the power of American courts has grown exponentially over the last four decades not because of"gridlock" in the other branches of government, but because the courts, largely by means of illegitimate constitutional interpretation, have grabbed a vast policymaking role for themselves. Thus, while Califano sees the judiciary as filling a vacuum created by the sclerosis of the other branches of government, conservatives see a rapacious judicial power that threatens the continued functioning of American democracy. In the words of the Wall Street Journal's Max Boot, writing in his 1998 judge-bashing screed Out of Order, America has"all the earmarks of a juristocracy," as judges"have assumed unprecedented authority over our lives, usurping powers once delegated to elected lawmakers."

But in whatever guise, the argument that American courts now play an unprecedented role in the policymaking process is not historically sound. The fact is, American courts have never for sustained periods of time been marginal to the resolution of the most pressing policy questions of the day.

Observing the America of the 1830's, Alexis de Tocqueville declared that judges possessed"immense political power." This power rested upon the comprehensive reshaping of the common law, undertaken largely by state court judges, that took place throughout the first half of the 19th century. The explicit goal of this legal revolution was to make the principles of commercial law amenable to the needs of an industrializing economy of nationwide scope. Thus, J.W. Hurst, the dean of American legal historians, wrote almost 50 years ago that, in laying the indispensable legal foundations of American commerce, not legislatures but judges"did most of the work." It was the courts, says Hurst, that"enlarged the array of procedures and instruments to promote dealing at a distance and on credit, and gave a contract emphasis to relations of employment, agency and lease." What is more, judges were fully conscious of their policymaking role and wholeheartedly embraced it. Consider the pronouncement of the U.S. Supreme Court in the Charles River Bridge case of 1837, which rejected the claim of a Massachusetts corporation to the effect that the state was constitutionally barred from incorporating a competing enterprise. The practical results of upholding such a claim, said the Court, would be dreadful:

"We [would] be thrown back to the improvements of the last century, and obliged to stand still, until . . . the old turnpike corporations . . . shall consent to permit these States to avail themselves of the lights of modern science, and to partake of the benefit of those improvements which are now adding to the wealth and prosperity, and the convenience and comfort of every other part of the civilized world."

Later in the century, the decisions of American courts were central to the post-Civil War settlement that reunited the country at the expense of newly free African-Americans. In enacting the post-Civil War constitutional amendments extending freedom, equality, and suffrage to African-Americans, says Eric Foner, Congress conferred"much of the burden for enforcing blacks' civil and political rights on the federal judiciary." However, through a series of tortured rulings giving these amendments the most parsimonious scope, the federal courts were instrumental in establishing the Jim Crow social order. Again, judges forthrightly acknowledged that their decisions were not based upon legal considerations alone, but also upon considerations of policy. Most famously, in the Civil Rights Cases of 1883, the Supreme Court struck down the Civil Rights Act of 1875, which mandated equality of access to public conveyances and accommodations, in part on the ground that such legislation was simply not needed so long after emancipation. The Court cruelly declared that, while a newly freed slave might rightly be afforded"the aid of beneficent legislation . . ., there must be some state in the progress of his elevation when he takes the rank of mere citizen, and ceases to be the special favorite of the laws."

Later in the 19th century, American courts became a central institutional obstacle to unionization. William Forbath, in his book Law and the Shaping of the American Labor Movement, puts the matter succinctly:"Nowhere else among industrial nations did the judiciary hold such sway over labor relations as in nineteenth and early-twentieth century America. Nowhere else did trade unionists contend so constantly with judge-made law." The judge-made law that unionists had to contend with most frequently was the labor injunction, a court order enjoining a strike. State and federal courts issued thousands of labor injunctions from the 1880's onward such that, as the labor historian David Montgomery has declared,"by the 1920's almost any strike, whatever the political affiliations of its leaders, was likely to face some sort of court injunction." For good measure, courts also invalidated more than 25 state statutes that prohibited courts from enjoining strikes. In doing so, noted Oliver Wendell Holmes, judges were preventing"social experiments that an important part of the community desires," in favor of their own views of the proper handling of labor relations.

More familiarly, although to a lesser extent than is generally recognized, American courts during these decades also struck down a number of statutes attempting to regulate various aspects of industrialism such as monopolization, conditions of industrial labor, and consumer health. With the triumph of FDR and the New Deal, however, American courts largely withdrew from this field, allowing legislatures great regulatory discretion. It is not often remarked, however, that legislatures afforded courts great authority to oversee the practices and procedures of the regulatory bureaucracy created during the New Deal and beyond. It is thus a bedrock principle of the American administrative state that, as one prominent federal judge put it,"Congress has been willing to delegate its legislative powers broadly" to regulatory agencies"because there is court review to assure that the agency exercises the delegated power within statutory limits."

With the advent of the Warren Court, we arrive finally at the era of which conservative critics complain. From Brown v. Board of Education onward, American courts have been more willing to consider -- although certainly not always willing to vindicate -- expansive claims of individual rights and protections for unpopular minorities, such as criminal defendants and the poor. And yet, for all of the conservative declarations that America is now run from the bench, I note that we are in the midst of a period of policy experimentation -- including ending welfare as we knew it and getting"tough on crime" in myriad ways -- that has proceeded almost wholly unimpeded by the courts.

Both Califano and conservative critics assert that the courts are now the most vital source of policymaking. And while Califano attributes the expansion of judicial power to the breakdown of the legislative process, and conservatives see it as the result of aggrandizing judges, both view judicial policymaking as pathological in the context of a democratic polity. But both Califano and the conservatives display no sense that American courts have been an integral component of policymaking for as long as the United States has existed. Thus, in so far as Califano is arguing for a federal bench staffed by judges who recognize their role as policymakers, he is arguing for something far closer to the American norm than are conservatives who wish to see judges eschew any policymaking role.