The modern judiciary often conceas a highly partisan political agenda in the innocent guise of enforcing the "living" Constitution.

n the last five years, the U.S. Supreme Court has invalidated restrictions on partial-birth abortion (Stenberg v. Carhart), invalidated capital punishment for the mentally retarded (Atkins v. Virginia), and invalidated antisodomy laws (Lawrence v. Texas).

Protected activity: Pro-life marchers pray in front of the Supreme Court building as they take part in the annual protest of the Roe v. Wade decision.

        In the same period, the Supreme Court has upheld serious speech restrictions on antiabortion protesters (Hill v. Colorado), upheld affirmative action laws involving substantial racial discrimination (Grutter v. Bollinger), and upheld major restrictions on expressive political activity, carefully styled as "campaign finance reform" by the political incumbents who advocate them (McConnell v. Federal Election Commission).
        Judicial elitism
        The point of rehearsing these decisions is not to discuss their merits--not to suggest that they are all necessarily wrongly decided--and it is certainly not to suggest that they are all necessarily rightly decided. Those are difficult questions, involving a range of issues concerning constitutional interpretation and the proper judicial role.
        Rather, the point in recounting these decisions is to highlight a significant and predominant pattern in Supreme Court decision making that is reflected in the substantive outcomes of these cases. In each of these decisions of the Court, and in many others, the ultimate outcome, politically speaking, reflects the views, values, and prejudices of elite Establishment opinion in the United States.
        For instance, elite U.S. opinion is strongly supportive of abortion. The Supreme Court agrees. Elite opinion is generally squeamish in relation to capital punishment. The Supreme Court follows suit. Elite opinion is now firmly in support of a broadly libertarian right to sexual freedom. And so, it turns out, is the Supreme Court. Elite opinion also favors restrictions on the speech rights of pro-life demonstrators, favors affirmative action programs that involve racial discrimination, and favors restrictions on political speech in the area of political expenditures. And, yes, the Supreme Court is in accordance on all three.
        Over a century ago, Finley Peter Dunne's Mr. Dooley observed that "th'supreme court follows th'ilection returns." Today, it would be quite a bit more accurate to say that the Supreme Court, in a broad range of cases, follows the editorial board of the New York Times.
        Why, one might ask, would the decisions of the Supreme Court so often reflect elite Establishment opinion over popular values or the rival elite values of conservatives or communitarians? The answer is not hard to find. The Center-Left liberal or libertarian social values on display in the cases above are also the predominant values of upper-middle-class professionals in America today--the class that includes writers, artists, intellectuals, the entertainment industry, teachers, journalists, increasing numbers of entrepreneurs, and, of course, lawyers, law professors, and judges. As legal scholar John Hart Ely observed almost a generation ago, there is a "systematic bias in judicial choice ... unsurprisingly in favor of the values of an upper-middle, professional class from which most lawyers and judges ... are drawn."
        Even so, one might ask why the personal values of Supreme Court justices, whatever these might happen to be, would affect their decisions more than at the margin. After all, they--and other federal judges--are applying the law of the Constitution, rather than simply dispensing ad hoc justice from beneath an oak tree like some primitive chieftain. Surely the very act of legal interpretation of a document as significant of the Constitution would serve to constrain whatever political biases any judge might bring to the judicial function. That view, as it turns out, is in fact quite a bit more complicated than it might first appear.
        Judicial activism and the 'living' Constitution

Signers of the Constitution: Proponents of the historic and living Constitution will continue to debate what the Founders meant when they promulgated the original document.

        The debate over the proper role a judge's personal political values should play in constitutional interpretation is an old one and a part of the perennial debate in American constitutional law concerning the nature of the Constitution and its interpretation. One aspect of this debate is that of whether the Constitution is fundamentally a "living" document, a position favored by judicial activists, or a "historic" document, the position favored by proponents of judicial restraint.
        For instance, William J. Brennan, an activist justice and proponent of the living Constitution, described the U.S. Constitution in this way:
        "Like every text worth reading, [the Constitution] is not crystalline. The phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure. This ambiguity of course calls forth interpretation, the interaction of the reader and text. ... We current Justices read the Constitution in the only way we can: as Twentieth-Century Americans. We look to the history of the time of the framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs."
        In practice, embracing this judicial activist and living constitutionalist view typically means that constitutional interpretation becomes both a highly personal and politicized enterprise. It ensures, for example, that for a Justice Brennan, the "majestic generalities" of the Constitution--the equal protection clause, the due process clause, the religion clauses, the free speech clause, among others--do not mean today what they meant historically in light of their original understanding and the long-standing legal and political traditions of the American people.
        Rather, these broad phrases will, for a Justice Brennan, reflect his own inevitably highly personal political views as to the "true" meaning today of equality, liberty, or free speech. To the extent, then, that an activist justice shares elite values, his living Constitution will reflect those values, not just at its margins but at its very core. Thus the living Constitution mirrors the political values and prejudices of the elite Establishment in almost all of its particulars.
        Moreover, it is also true that the elite Establishment embraces the living Constitution and, of course, rejects the historic Constitution and judicial restraint. Thus what is also notable here are the very high levels of support that judicial activism and the living Constitution have among Establishment elites, where it is in fact the reigning orthodoxy. Why, one might ask, is their support for the living Constitution so high?
        The reason is not hard to discern. As legal scholar Mary Ann Glendon observed in her book Rights Talk: The Impoverishment of Political Discourse (1991), elites have a strong "preference for extending the authority of courts," because the judiciary is "the branch of government to which [they] have the easiest access." As Glendon also notes, this view is the "institutional expression [of elite] disdain for ordinary politics and the legislative process," a disdain itself reflective of the "common elite attitude that the educated are better equipped to govern than the masses."
        In other words, elite opinion in the United States favors a conception of the judicial role and the nature of the Constitution that will grant elite judges the power to read other substantive elite values, such as abortion rights, into the Constitution, thereby disabling their political opponents from pursuing policies, which the elites oppose, through the ordinary political process.
        The elite legal class, in particular, thus constitutes in many ways a kind of quiet aristocracy, able to conceal much of its highly partisan exercise of political power in the simple and innocent guise of enforcing the Constitution. As Alexis de Tocqueville wrote in Democracy in America almost two centuries ago: "In the United States the lawyers constitute a power which is little dreaded and hardly noticed ... but it enwraps the whole of society, penetrating each component class and constantly working its secret upon its unconscious patient, till in the end it has molded it to its desire."
        Giving the people the runaround
        It is not surprising, then, that many Americans believe the Supreme Court, and the federal judiciary more broadly, has engaged in a systematic end run around the American people. For the proponent of judicial restraint, the historic Constitution is the U.S. Constitution, the Constitution of We, the People, a Constitution grounded in the sovereignty of the people, the meaning of which therefore must reflect the political will and traditions of the American people, not the personal politics of activist judges.
        Moreover, from the judicial restraint perspective, a Constitution that fails to constrain--because it "lives" to such a degree that it means whatever its interpreters want it to mean--is in fact no Constitution at all. Finally, the historic Constitution is also emphatically a judicial-restraint Constitution. Not only is it based upon the popular will, its governmental structures reserve

The Supreme Court today regards itself-and is widely regarded in return-as the ultimate arbiter of the meaning of the Constitution.

most political power to the people and their representatives beyond the reach of judges. It also mandates that significant constitutional change occur through the amendment process, not through judicial interpretation, in accordance with Article V and the desires of supermajorities of the American people.
        Consider, for instance, the views of John Marshall Harlan II, a proponent of judicial restraint and a largely historical conception of the Constitution, linked to its original understanding and to long-standing American legal traditions. Justice Harlan, explaining his opposition to judicial activism in Oregon v. Mitchell, observed that "when the Court disregards the express intent and understanding of the Framers, it has invaded the realm of the political process to which the amending power was committed, and it has violated the constitutional structure which it is its highest duty to protect." For Harlan, the Court's willful disregard of the historical meaning of the Constitution is a usurpation of political power that rightfully belongs to the people as well as a violation, by the Court itself, of the structure of the Constitution.
        Or consider the view of Justice Hugo Black, another proponent of judicial restraint, who argued in Griswold v. Connecticut that
        "there is no provision of the Constitution which either expressly or impliedly rests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court's belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country. Subjecting federal and state laws to such an unrestrained and unrestrainable judicial control as to the wisdom of legislative enactments would, I fear, jeopardize the separation of governmental powers that the Framers set up and at the same time threaten to take away much of the power of States to govern themselves which the Constitution plainly intended them to have."
        For Black, as for Harlan, the rejection of judicial restraint and the historic Constitution in favor of judicial activism and the politicized living Constitution amounts to an abandonment of the actual U.S. Constitution. Thus, it represents an unconstitutional shift of political power from the people to the federal judiciary in violation of the foundational constitutional structures such as the separation of powers and federalism.

What can be done?

he Supreme Court today regards itself--and is widely regarded in return--as the ultimate arbiter of the meaning of the Constitution, a position known as "judicial supremacy," and one which entails that the political branches broadly defer to the decisions of the Supreme Court even when those decisions are wrong. It was not always thus.
        At the founding and during the early years of the republic, many prominent Americans contested judicial preeminence in constitutional interpretation, asserting that all three branches or departments of the federal government have equal authority to interpret the Constitution, a view commonly known as departmentalism. Thomas Jefferson rejected judicial supremacy in favor of departmentalism, as did James Madison, Andrew Jackson, and Abraham Lincoln, among many others.
        Indeed, Jefferson warned Judge Spencer Roane almost two hundred years ago that judicial supremacy was destructive of the separation of powers and that "the Constitution, on th[e] hypothesis [of judicial supremacy], is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please." Jefferson's words were prophetic: A "mere thing of wax" is an apt description of Justice Brennan's elite activist conception of the living Constitution.
        Lincoln also warned of the dangers of judicial supremacy, famously observing in his First Inaugural Address that "the candid citizens must confess that if a policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having, to that extent, practically resigned their government to the hands of that eminent tribunal."
        Lincoln's words also resonate today. A more stately description of the fate of popular self-government under Justice Brennan's elite activist conception of the living Constitution would be hard to find.
        Even so, judicial supremacy, the Court's role as ultimate interpreter of the Constitution, is now a deeply entrenched legal and political practice. But one important aspect of this question remains unresolved in our legal traditions. If highly activist living constitutionalist decisions by the Supreme Court may be viewed as more than mere misinterpretations of the Constitution, if they may be viewed as affirmative violations of the Constitution by the Supreme Court itself, as Justices Harlan and Black viewed them, then perhaps the application of judicial supremacy in such cases could be seriously reexamined. Perhaps one could view the Court as supreme when it is merely wrong about the meaning of the Constitution, but not as supreme when the Court itself violates the Constitution? That question, so seldom raised in our constitutional history, has in no sense been definitively answered. The restoration of the historic Constitution may require that we answer it.