Courting All VotersPrint
The judicial effects of American civic engagement
By Lincoln Caplan
June 6, 2016
Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law by David Cole; Basic Books, 307 pp., $27.99
Under Chief Justice John G. Roberts Jr., the Supreme Court for the first time in American history issued the majority of its ideological 5-4 rulings along party lines—a streak that ended with the death of Justice Antonin Scalia in February. The five conservative justices, appointed by Republicans, made up the majority, the four moderate liberals, appointed by Democrats, the dissenters. The decisions that came down—favoring the interests of corporations over those of consumers, gutting the power of labor unions, striking down the heart of the Voting Rights Act, and many other rulings—support the view that the Roberts Court has been the most conservative in a generation, and likely in the past 80 years.
Yet this is an incomplete picture. The same Court held that the Constitution guarantees the right to same-sex marriage. It upheld the Affordable Care Act against two aggressive challenges. It struck down important parts of an Arizona anti-immigration law. It made noteworthy liberal decisions about criminal law, the First Amendment, and other areas of law. Conservatives criticize these rulings for the same reason that liberals denounce the Court’s prevailing ideology: the Court, they complain, decides cases based on political philosophy rather than solely on the requirements of law.
Guilty as charged, say many political scientists. Scholars in the subfield of judicial politics have been documenting this reality with increasing precision for half a century, without much outside notice. The Roberts Court is more conservative than its predecessors, these scholars make clear, but not necessarily more political.
In the legal world, traditionalists disagree, insisting that, with rare exceptions when the law is unsettled, the justices reach decisions by interpreting law, not by indulging their political or personal preferences. Pragmatists side with the political scientists. They contend that, particularly in cases about the Constitution, the law is often opaque. In these instances, the justices often make decisions based on ideology and “priors”—values shaped by life experience, social background, religion, and so on.
The division between legal conservatives and legal liberals is fierce and enormously consequential and raises elementary questions about the separation of powers among the branches of government and about the role of the Supreme Court.
David Cole, a regular contributor to The New York Review of Books and The Nation, is an increasingly influential part of this conversation. In his illuminating pieces of opinion journalism, he recognizes that, regardless of what onlookers say, all Court decisions are fundamentally political when they allocate power and embrace a particular set of values.
Cole takes a more spacious approach to the Court’s business, however, in his capacity as a professor of law and public policy at Georgetown University. In his excellent new book, Engines of Liberty, he focuses on the role in shaping constitutional law of what Justice Louis D. Brandeis called “the most important office”: the private citizen. A century ago, during the Progressive Era, Brandeis was concerned about “serious injury to the public” if citizens were to neglect their civic duties. For his part, Cole focuses on the upside—the power Americans have when they fully engage as citizens.
His book shows that a combination of political and legal advocacy is a basic way for citizens to tell the Supreme Court what they think the Constitution should mean. Cole summarizes how citizen-led politics has shaped prominent law, and how it should:
To focus on federal judges and courtroom lawyers is to miss much of the story—and probably the most important part. Look behind any significant judicial development of constitutional law, and you will nearly always find sustained advocacy by multiple groups of citizens, usually over many years and in a wide array of venues. Whether it is the NAACP Legal Defense Fund and civil rights, the ACLU Women’s Rights Project and gender equality, or the NRA and the right to bear arms, underlying almost every important constitutional transformation in the modern era have been the coordinated efforts of politically engaged citizens united by their devotion to a particular constitutional vision.
Cole demonstrates that recent Court rulings perceived as thunderbolts of newly found law—in 2015, the holding that the Constitution guarantees a right to same-sex marriage; in 2008, the ruling that it guarantees a right of individuals to own guns for personal use; and in the 2000s, rulings that the U.S. government owes rights of due process to enemy combatants in a U.S. war against terrorists—were actually products of organized and longstanding citizen campaigns.
Early failures in these efforts, he argues convincingly, were critical in working out political arguments that could sway public opinion, and then in developing corresponding legal arguments. By his reckoning, the gay marriage ruling was 20 years in the making, the gun rights ruling 30, and the Gitmo rulings 60. The last traces back to the Court’s ignominious decision that the government could intern Japanese Americans during World War II, based solely on fear rather than proof of sabotage.
Observers disagree about how extensive the Court’s authority should be to rule on the constitutionality of statutes passed by Congress and executive orders issued by the president. Is broad judicial review still vital to this democracy as a check on overbearing power and a safeguard for minorities and individual rights? Or should review be limited because it has become the misused tool of an overempowered Court disdainful of majority rule? A generation ago, conservatives like Judge Robert Bork argued for limits. Since then, as the Court has moved to the right, some liberals have also pushed for limits, suggesting that the argument is more about politics than jurisprudence. But, as Cole writes, it is about both.
A high-road response to the idea of curbing the Court’s power is that it is unnecessary—even controversial rulings never stray far from public opinion. A key point of Cole’s is that the will of the people is a product of politics, so it is essential to litigate in the court of public opinion before trying to win in court. Victories there, especially at the Supreme Court, depend on public opinion in most watershed cases.
A giant exception is the 5-4 ruling by the conservative majority in Citizens United v. Federal Election Commission (2010), which found that money equals speech and that placing limits on independent spending by corporations, unions, and other organizations in political campaigns would infringe on their right to free speech. In The Atlantic this April, Cole argued that the way to overturn this plutocratic decision, now opposed by Republicans and Democrats alike, is through a grassroots campaign that catches on nationally, which is already under way in a few places and could help restore faith in the democratic process.
The thesis of Cole’s book is neutral about this politically charged subject. He includes a robust example that liberals will like and conservatives will dislike (gay marriage) and another one that will stir the opposite response (gun rights). The latter seems different, though, in a critical respect: the bullying tactics of the National Rifle Association have played a crucial part in securing those rights.
Most significantly, Cole shows why two landmark Supreme Court rulings and a third set of them are best understood as expressions of changes in public opinion and, then, in fundamental politics, brought about from the bottom up. That is in addition to their prominence in law made on high.
Lincoln Caplan is a senior research scholar at Yale Law School and a member of the Scholar's editorial board. He is the author of The Political Supreme Court and five other books about the law.