Dick raises important issues, two of which are at the heart of my forthcoming book, The Constitution Today, due out in September (and currently available for preorder).
First, Dick wonders about the willingness of professors to criticize justices forthrightly. Here is what I say about that in the book:
Who judges the top judges?
Not the journalists. … Professional journalists generally lack the time, the temperament, and the training to do all that needs to be done to keep the constitutional system honest.
If not the fourth estate, then how about the three branches? Of course, inter- and intra-branch checks and balances are crucial parts of our constitutional system—ambition checking ambition, and all that. But it is awkward for lower federal court judges to take it upon themselves to keep their bosses in check. The formal lines of appeal run from bottom to top, not the other way around. More generally, federal inferior court judges are self-interested actors within the larger governmental system, as are state judges, other state officials, and other federal officials. None of these actors has a credible claim to complete independence and disinterestedness.
The organized bar surely has a role to play in judging the justices, but lawyers also practice before the court, and those who want to win may aim to please. Winning lawyers generally command higher fees and higher status. These realities blunt the willingness of top lawyers to always speak truth to power—here, judicial power. Besides, the ultimate touchstone for judging the judges (and all other government actors) is the Constitution itself—and how much do most top lawyers really know about the Constitution and all its parts?
Enter the constitutional law professor.
Although my academic position was not intentionally designed for the purpose of judging the judges and keeping them honest, my job does have the right features. I too have life tenure, which enables me to take a long view about both the Constitution and the court (as well as other organs of government). I have had years of training in constitutional law, and I know how the judiciary works. Like the justices, I have been afforded considerable leeway to define my own agenda. Thanks to manageable teaching loads and a generous compensation package—not to mention winter, spring, and summer breaks—I am able to do deep-drilling, time-consuming research, which is difficult for most journalists given the parlous economic condition of the modern fourth estate. I am not a governmental actor seeking to increase the power and privileges of my own coercive branch. Thus, I can credibly adopt a neutral and disinterested stance vis-à-vis competing branches, acting as an umpire of sorts. Because I do not practice law before the justices themselves—because I do not litigate—I do not need to flatter the members of the court in order to put food on my table or win points in a status hierarchy. Instead, I can perform a useful social function by both praising and criticizing the justices as I see fit, as a sincere and relatively disinterested, albeit fallible, professional observer—a true friend of the court. And I can do all this in a public way—sometimes in newspapers and magazines and books aimed at the general public, and other times in more specialized works of legal scholarship designed mainly for lawyers, judges, and other expert governmental officials.
Dick, I had you specifically in mind when I wrote about the awkwardness of a lower court judge taking it upon himself to publicly put the justices in their place; almost no one else in your position does this, but you do, all the time. Are the other lower court judges mistaken in their sense of restraint? Or are you stretching the limits of the role? Did our mutual hero Henry Friendly ever go this far? These are sincere questions, not rhetorical gotchas. I am truly interested in your thoughts on this.
And speaking of the judicial role, you are quite dismissive not just of constitutional history, but also, apparently, of constitutional text and structure. If you had admitted in your confirmation hearings that judges should spend virtually no time carefully studying “the Constitution, the history of its enactment, its amendments, and its implementation,” would you have ever been confirmed? Or would your comments—which seem to me to go far beyond what David Strauss has publicly said, in a purely academic capacity—have been seen as disqualifying by the U.S. Senate, given the proper role of a judge in our constitutional system? Again, this is not a snarky gotcha question: I am sure you have thought about this confirmation-hearing question but I cannot recall ever having seen you address it.
I myself do not think that constitutional history is the be-all and end-all. But here is what I do say about this in the new book:
It might be asked why the current generation of Americans should ever resolve any genuinely difficult and important modern issue by paying close attention to words penned and deeds done long ago by now-dead men.
Despite—or perhaps because of—their age, the Constitution’s text and traditions provide important sources and resources for modern constitutional conversation and contestation. This old text and the history of its implementation furnish a common vocabulary for our common deliberations—a shared national narrative that can facilitate social cooperation and coordination for a diverse and highly opinionated populace. Also, many of the difficult issues faced by modern constitutional decision-makers are in fact surprisingly similar to those faced by their predecessors, because today’s constitutional institutions lineally descend from the Founders’ institutions. Presidents still sign and veto bills, the Senate still remains the judge of its own elections, the House continues to enjoy the power of impeachment, and so on.
Modern interpreters should attend to various elements of the Constitution’s original intent not because these old unwritten understandings always and everywhere tightly bind us today, but rather because we can learn from our constitutional predecessors. The evils that they lived through—that they experienced firsthand at epic moments in American history such as the Revolution and the Civil War—can help us understand why they put certain things in the text, to spare us from having to suffer as they suffered. Various rights emerged from real wrongs, wrongs we ignore at our peril.
Simply put, the written Constitution is often wise—typically, wiser than judges acting on their own steam—because the document distills the democratic input of many minds over many generations. More ordinary people voted on the Constitution in 1787-88 than had ever voted on anything else in world history. In saying yes to the Constitution that year, everyday people up and down the continent wisely insisted that a Bill of Rights be added—a Bill in which the phrase “the people” appears no fewer than five times. Later generations of ordinary Americans mobilized to enshrine in this terse text an end to slavery, a sweeping guarantee of equal birthright citizenship, an emphatic commitment to protecting civil rights against all levels of government, and radical expansions of the rights of political participation—to blacks, to women, to the poor, to the young, and more. These were epic democratic achievements, and they are all worthy of profound respect by today’s Americans. We, the people of the twenty-first century ignore the collected and collective wisdom of this old and intergenerational text at our peril.
Dick, when I wrote these words about how the Constitution is typically “wiser than judges acting under their own steam” please know that I did in fact have you specifically in mind. (In fact, I think about you often!) You are a truly wise man. But the Constitution itself is vastly wiser than any one of us—even you!—and your failure to appreciate this democratic fact is not wisdom, but hubris. And in saying this to you bluntly, here and now, I think I am also refuting your thought that academics are afraid to take on judges directly.