Under its late founding editor, Fr. Neuhaus, this journal made its reputation in part by its opposition to the judicial usurpation of democracy, culminating in its controversial 1996 symposium under that title. Those interested in the topic would do well to read James Grant’s fascinating article, The Scourge of Juristocracy, published in the spring 2010 issue of The Wilson Quarterly. In the United States, and increasingly in Canada, opposition to an apparent judicial supremacy comes in conservative guise. The courts are presumed to be imposing progressive values on a recalcitrant public in the habit of maintaining older institutions and mores. In this respect First Things has tended towards what I would call a highbrow populism, based on the (not altogether incontestable) assumption that the people possess an innate wisdom superior to the political illusions of their élites.
However, by Grant’s account, the historical development of juristocracy is more complicated than this: in the first years of the last century American courts were often seen as obstructing the progressive will of elected legislatures, culminating in the Supreme Court’s early opposition to Franklin Roosevelt’s New Deal legislation. Grant traces the diverging paths of Britain and the US in their respective attitudes to the role of judges and courts in the political process, with Britain embracing parliamentary supremacy after 1688 and the United States adopting Blackstone’s more conservative respect for the judge-made English common law. In the latter a political role for the courts could be seen as a concession to the classical mixed constitution:
Modern judicial activism is in many ways an expression of the old belief that democracy must be tempered by aristocracy—an idea that was prevalent in the late 18th century and now masquerades in democratic garb. The main vehicle by which judicial activism has been brought about is, of course, the language of rights. Coinciding with the articulation of the secular, anti-religious feelings of the Enlightenment, the flourishing of constitutional debate in the 18th century witnessed regular appeals to the idea of inalienable natural rights, which took on a sacred role. But it was only in the latter half of the 20th century that the idea (now described as human rights) became an intrinsic part of legal and political discourse. For many today, a world without rights enforced by a judiciary is unthinkable. Especially in undemocratic regimes and in new or unstable democracies beset by deep corruption and other ills, rights-based judicial review is a necessary protection against arbitrary government. But in ostensibly healthier democracies, it inevitably comes at a cost.
For the most part I find Grant persuasive. However, conspicuously absent from his analysis is a recognition of the important role of political culture in the protection of rights and in the smooth functioning of a constitution. A political culture includes a variety of attitudes, usages and mores that condition the ways people act politically. Respect for the rule of law, for example, cannot be legislated into existence where it does not already enjoy longstanding support in the culture of a particular body politic.
Americans have long esteemed their 18th-century founders as near geniuses who crafted a carefully balanced system of government that has proved durable over the course of more than two centuries. However, from the standpoint of the student of political culture, this esteem, while not altogether misplaced, somewhat misses the point. Without a supportive culture of respect for constitutional government, no political framework, however well-thought-out, could have survived for long.
This has implications for the functioning of courts as well. Here’s Grant once again: “Especially in undemocratic regimes and in new or unstable democracies beset by deep corruption and other ills, rights-based judicial review is a necessary protection against arbitrary government.” This conclusion is open to question at the very least. If corruption is as deep-seated as it is in many countries, it is a rather tall order to expect the courts to function in a way that places them above such ingrained patterns of public life. Moreover, even if the courts somehow manage to free themselves from the taint of corruption and tyranny, there is no inevitability that the governments at issue will heed their rulings, especially if the citizenry is accustomed to such governmental arbitrariness.
It would be interesting to see how a recognition of the pivotal role of political culture might change the debate surrounding the role of the courts in a political system.