Judicial Technocracy in America: Part One

This article is the first installment in a five-part series devoted to American constitutional interpretation.

Today, the nomination and confirmation of candidates for the Supreme Court has all the public drama of a presidential campaign. One can reliably expect whispered rumors of a potential vacancy to be quickly followed by frenzied prediction of the favorites for replacement—the announcement itself generates enough scrutiny and fanfare to rival nearly any other grand event in American political life. Nominees are not merely named but debuted, ceremoniously presented to the public through the prism of their biographical journeys replete with a narrative account of personal and professional accomplishment, patriotism, even heroic triumph. Each new member of the Court dangerously upsets or happily transforms the delicate ideological balance that is either the guarantor of our continued success or engine of our pernicious decline. One must only think of Ted Kennedy’s extraordinary (and effective) polemic against the confirmation of Robert Bork in 1987 to understand the significance now assigned to the judicial branch—if Bork were allowed to take the bench, the argument went, the principles upon which the foundation of the American regime rests would be undermined, threatening to immediately and irrevocably change our lives for the worse.

All of this should strike us as peculiar since Hamilton once confidently asserted that the judiciary was “incontestably…the weakest of the three departments of power”. It doesn’t distribute “the honors” so craved by the citizenry nor does it wield “the sword of the community”, command the “purse”, or determine “the rules by which the rights of every citizen are to be regulated”. Of course, the judiciary is prone to error and even indiscretion but “the general liberty of the people can never be endangered from that quarter”. So in response to the discomfiting concerns anti-Federalist activists like Brutus and the Federal Farmer had about the independence of the judiciary from decisive checks on its judgment, Hamilton assured his readers that “its total incapacity to support its usurpations by force” reveal “the supposed danger of judiciary encroachments” to be no more than a “phantom”. The only time Hamilton ever discusses the threat of “judicial despotism” is in reference to criminal prosecution, not constitutional interpretation (Federalist #83).

In fact, the real territorial dispute produced by the constitutional separation of powers, according to the Federalist papers, was supposed to be between the legislature and the executive, or between the “energy” of univocal action and the “impetuous vortex” of law making. In the American system, judges “have neither Force nor Will but merely judgment” and this traditionally meant that their office was charged with the humble interpretation of the law versus this or that mode of aggressive statesmanship. One can name great presidents and even some great legislators but there are no great judges—they are competent or technically proficient, and if they do their jobs properly, render the exercise of their responsibilities “invisible and null”, to borrow from the French philosopher, Baron de Montesquieu. Sometimes we know their names and even identify them with periods of court history but they never command the adulation that comes with true political greatness. Executives are proper objects of our vigilance since motivated by a “love of fame” but judges largely labor in permanent obscurity. The inevitable contest for political aggrandizement the compartmentalization of government powers was designed to both check and encourage is a contest between competing varieties of statesmanship and there is no such thing as judicial statesmanship, as least as described by the authors of the Federalist papers.

Nevertheless, there is constant and tempestuous dispute today regarding the charge of “judicial activism”, alleged by those who reside on either side of our partisan fault line. Generally speaking, an activist court is one that exceeds the boundaries of the powers constitutionally granted to it, usurping functions and responsibilities otherwise distributed to the other two branches. The accusation of activism reminds us of the court’s originally passive design; Hamilton could grant it an enormous measure of independence from the people and normal democratic process, even grant it the unchecked power to “render a legislative act void”, precisely because its passivity, or its inability to formulate an active agenda of its own, permanently limited its potential for real abuse. However one precisely defines judicial activism, it is certainly worth pondering how the most innocuous branch, the one least likely to attract the intestinal suspicion of concentrated power that animated the construction of the other two branches, has recently managed to become a viable candidate for tyrannical overreach. It has become imperative not merely to fully explicate the meaning of judicial activism but to explain what political, historical, and theoretical conditions have allowed the judicial branch to become a serious contender with the other two branches for governmental supremacy. Once a detached observer of the tug of war between the executive and legislative branches, the judiciary now stakes, sometimes candidly, a claim of its own.

In what follows, my primary aim is to approach the problem of judicial activism in the context of three other historically and politically significant philosophical problems: the classic tension between democracy and law, the modern incarnation of this tension exemplified by the American regime, and the increasingly troublesome problem posed to modern democracy by the emergence of technocracy, or the view that politics can be reduced to its scientifically describable components and that governance, therefore, can be reduced in turn to a purely rational, technical exercise to be dominated by hyper-educated elites. To anticipate, the serious web of political and constitutional issues spun by the problem of judicial activism can be approached as the microcosmic reflection of a deeper and broader modern crisis of how we understand the nature of law, authority, and reason in relation to political life.

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