The Moral Incompetence of the Judiciary

A society so riven that the spirit of moderation is gone, no court can save; . . . a society where that spirit flourishes, no court need save; . . . in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.

-Judge Learned Hand

During the past three decades, a vision of the federal judiciary as the moral tutor appointed for a recalcitrant society has become dominant in the American legal academy and increasingly within the courts themselves. Most legal scholars, in one form or another, have embraced constitutional litigation as the ideal forum for moral evaluation of public policy. Rather than merely being the occasion for enforcement of a legal text by interpretation according to standards of law, the Supreme Court’s exercise of judicial power to review the constitutionality of government decisions has become an opportunity for exploration of public virtue and national aspirations.

Michael J. Perry, a leading legal scholar, argues that judicial review should serve the role of “prophecy,” calling us to a deeper understanding of ourselves through moral exhortation by the Supreme Court. Stanley Ingber, another prominent academic, envisions the Supreme Court as the “mediator” of a public dialogue, which he hopes will expand throughout society, but in which the Court holds the preeminent position in initiating and structuring a national discussion of fundamental values. Owen Fiss urges judges to avoid an “arid and artificial” focus upon the words and original meaning of constitutional provisions by instead reading “the moral as well as the legal text” of the Constitution. In sum, for most teachers in American law schools, constitutional law is seen as intertwined with moral philosophy, and court adjudication as the preferred venue for molding the American character.

In more recent years, the Supreme Court has lowered its profile and declined to encompass ever larger areas of public and private life within the realm of constitutional imperatives imagined and imposed by the courts. Most in the legal academy have decried this change in judicial attitude, arguing that the Court is abdicating its responsibility to reshape society and forge a national community based upon aspirational ideals.

Assuming the current trend in constitutional jurisprudence holds, we must ask whether such a course really is bad or whether it is a healthy development, reflecting a shift from a fixation on rights and judicial governance to democratic dialogue, political compromise, and discussion of values in a moral-cultural context. Should our society’s dialogue about values proceed in the context of the Constitution, and more particularly, in the arena of constitutional litigation with primacy given to the courts as moral tutors?

In any event, it is far from clear that the Court truly has abandoned its arrogated role of national guidance counselor. The legal academy and its followers in the media appear to have a powerful influence upon the Court, especially given the apparent desire of the Court’s justices to secure the praise of academic scholars and national reporters. Indeed, three justices in a deciding opinion recently asserted rather imperial authority, suggesting that the Court properly may instruct the public to defer to its resolution of a divisive issue and to follow loyally the path it has marked.

The Constitution is the framework of our national government and a guarantor of fundamental rights. But it is not the sole source of values or principles for us as a nation or as a people. A dialogue about fundamental constitutional values attendant to constitutional adjudication must be focused upon the Constitution as a legal text, and, because it is a legal text, the debate must be grounded in legal sources and legal analysis. We ask too much of the Constitution, and too little of ourselves, when we view it as the wellspring from which to draw comprehensive notions of public virtue or when we project onto it our aspirations as a national community.

The Supreme Court lacks the moral competence to promote a certain vision of American moral aspiration, rather than dutifully enforcing particular values already incorporated into our national charter. The judiciary lacks competence both in the sense of its authority to assume such an elevated role and in its qualification for and ability to carry out such a mission. As Michael Stokes Paulsen reminds us, “The legitimacy of the Supreme Court in our constitutional system rests not on its ability to fashion social and political compromises but on its ability to render decisions that the public readily can recognize as straightforward interpretations of a constitutional or statutory text.” We do not choose the members of our judiciary because of their eminence as philosophers or their insight as moralists. Although each member of the bench properly dons the black robe of the judge, the white robe of the prophet ought to rest uneasily upon his shoulders.

Moreover, judicial adjudication skews moral discourse in a particular legalistic direction and suppresses the value of deliberation in other settings. Because constitutional debate is primarily the preserve of lawyers, dialogue in academic literature or constitutional litigation is conducted in a legal dialect that both distorts discussion of values and makes it inaccessible to the general public. While judicial review is vital to safeguard our constitutional freedoms, a degree of moral and philosophical discussion flowing from constitutional litigation cannot justify the costs that overreaching judicial rights declaration has for public debate and democratic governance.

Finally, moral discourse is too important to be captive to constitutional litigation or, for that matter, to governmental institutions, whether political or judicial. Our values as a people should not be constrained within the straitjacket of the Constitution. The Constitution serves the discrete purposes of establishing the framework for a limited government and for ensuring certain basic rights for individuals. It has little to say about most of the matters that should be important to us as individuals and as a community. Notwithstanding the growth of government and the proliferation of litigation, the center of life for most Americans remains with family, friends, and private groups-not political and legal institutions. Many of our social problems today demand a resurrection of values in a manner that cannot be compelled by constitutional command or legislative enactment.

A theory of constitutional law that may be out of fashion in today’s legal academy, but that fits comfortably within the modern conservative and the traditional liberal views of the courts, begins with certain basic premises: the existence of law and the possibility of meaningful rules of law. It must recognize the Constitution as a legal text subject to legal interpretation by judges who derive their authority to render a judicial decree from the existence of the Constitution as a source of law. Whether one views constitutional interpretation as grounded in a theory of original meaning or the traditional liberal theory of judicial restraint and neutral principles, the distinctive nature of this approach is that it is legal in nature. One need not retreat into formalism, ignore the importance of practical wisdom, or deny the creative element in judging to insist that constitutional decision making be carefully bounded by the text, historical understandings, legal doctrine, and a modest view of the role of the judiciary.

A constitutional decision, both in outcome and reasoning, must be justified by reference to legal authority. John Hart Ely writes that the Supreme Court “is under an obligation to trace its premises to the charter from which it derives its authority” before it may make any constitutional pronouncement. The values espoused in a constitutional decree must be rooted in the Constitution, not in our hopes and aspirations for a better society. Judicial decision making calls for wise employment of that singular form of human thought known as legal reasoning. We do not ask our Courts to engage in capacious moral or philosophical inquiry. As Judge Learned Hand once observed, we have not anointed the Justices of the Supreme Court to rule us as a “bevy of Platonic Guardians.”

There is no reason to assume that judges possess sufficient knowledge and virtue to undertake a mission of moral evaluation through the episodic venues of cases and controversies. The democratic process of political institutions accountable to the people is not so hopelessly imperfect that the preceptorship of the courts is preferable. The perception of the average American, however simplistic or formalistic the legal academy may regard it, remains that the judge’s vocation is the neutral application of established rules of law. Americans would not long respect or tolerate a Court that forthrightly assumed the position of national moral guidance counselor. If the Court were truly to undertake the charge of serving as our national conscience, then the Court would simultaneously lose its legitimacy as a court of law.

What then is the purpose of constitutional review? When the constitutional mandate is sufficiently clear from the text, the understanding of the framers, or the structure of constitutional government, it removes certain matters from popular control and majoritarian rule. The Constitution is designed to be a trump card. When the Constitution speaks, the Court should amplify that sound loudly and with a commanding voice. When the Constitution is silent, the Court likewise should remain silent. If we free the Supreme Court from its bondage to a strict legal interpretation of the Constitution and those values articulated in that document, then the Court has lost its lawful authority to speak and we have lost our legal obligation to listen. Reasonable judges, legal scholars, and lawyers will hear the voice of the Constitution differently. But we must be listening with legal attention-not with the expectation of hearing the answer to our hopes and aspirations.

The role of the judiciary in constitutional review is to determine the substantive principles incorporated in the document for application to concrete individual controversies, while avoiding as far as possible an evaluation of the wisdom or desirability of the government policies at issue. Opposing views of right and wrong are best addressed and accommodated in a democratic political debate, with the judiciary serving the vital but secondary role of ensuring that basic rights are protected to prevent oppression of minorities by majoritarian rule. The absence of a constitutional right, and thus of a judicial remedy, does not dictate a narrow or limited vision of a moral society. Rather, it means that recourse must be made to the political process-or beyond to the moral and cultural realm of our community.

There is, after all, one other individual right too often neglected by modern constitutional scholarship-the right of democratic self-government. Our revolutionary founders fought for the right to elect their own representatives to make laws by democratic means. This right of democratic choice and the responsibility of democratic governance is not promoted by judicial imperialism, even if justified as showing some responsiveness to popular sentiments or public virtues.

Critics in the legal academy find democratic government inattentive to their view of fundamental values and failing in the mission of national community building. In contending for the preeminent position of the judiciary, they provide a troubling inventory of the imperfections of democracy, defects that we should soberly consider whenever looking to political institutions for answers to difficult moral questions. Nevertheless, as John Hart Ely concludes, “We may grant until we’re blue in the face that legislatures aren’t wholly democratic, but that isn’t going to make courts more democratic than legislatures.” Reciting the imperfections of democracy does not lead ineluctably to the conclusion that the least accountable branch of the federal government is the better forum for our national debate about public values. The political branches are forthrightly empowered to reconstitute society; the courts are limited to adjudication of discrete cases or controversies. The political branches are intended to be accountable; the judiciary is not. The members of the political branches are subject to electoral removal; the judiciary is not.

James Bradley Thayer warned nearly a century ago that “common and easy resort” to judicial review would tend “to dwarf the political capacity of the people, and to deaden its sense of moral responsibility.” An ambitious vision of the Supreme Court and constitutional judicial review as serving the ends of public virtue is without legal justification, except as bound tightly to the values incorporated into our national charter. Even if legitimate, moreover, judicial supremacy inhibits, rather than promotes, general moral discourse about community values and aspirations.

Alexander M. Bickel once described Supreme Court decisions as “the beginnings of conversations between the Court and the people and their representatives.” He acknowledged that they were “never, at the start, conversations between equals,” given that the “Court has an edge” because it initiates the discussion with “some immediate action.” Nevertheless, he insisted, “conversations they are.”

To say that the Court has an edge in the conversation is an understatement. The “immediate action” to which Bickel refers is, of course, the judicial decree . We may embrace the Court’s pronouncement as the articulation of public virtue and accept its declaration into our public conscience, or we may express abhorrence at the Court’s edict and seek to avoid and overturn its decision as wrong and unacceptable. But, for the moment, we must live with it. A judicial decree is not a suggestion or an invitation to a conversation, as every litigator soon discovers. Moreover, the Supreme Court’s declaration of constitutional law is binding upon the entire polity. As Judge Frank H. Easterbrook says, “Everyone must dance to the judges’ tune whether party to the litigation or not.”

By its decisions, an imperial Supreme Court may choose which values to elevate and commend to public approval and which values to denigrate as unworthy of further consideration. The clearest example of a deliberate adoption of one value at the expense of another, a judicial resolution that continues to distort public choice and moral discourse, may be found in the 1973 abortion decision of Roe v. Wade . This decision announced a generalized and fundamental right to privacy, encompassing the power to undertake conduct with significant social and moral ramifications. The Roe decision created an absolute right to abortion during the first trimester of pregnancy and allowed only for very limited regulation of abortion even late in pregnancy. Although the Court purported to avoid “the difficult question of when life begins,” the nature of the decision effectively answers that question. The Court’s aggressive withdrawal of protection from fetal life appears to resolve the question of when human life begins. Justice Byron White wrote in dissent that the Court elevated the value of individual autonomy over the value of the “continued existence of . . . life or potential life,” while simultaneously pretending not to make such a choice and failing to demonstrate a constitutional warrant for preferring one value over the other.

By transforming abortion from a controversial and complex moral and political question into a constitutional entitlement, Roe v. Wade bestowed upon abortion the status of a positive good. It withdrew from the supporters of liberal abortion laws the obligation to frame an ethical justification, beyond absolute claims of personal control and an extremely isolated view of individual autonomy. As a fundamental right, abortion is inherently justified. For many years following Roe , most of those who supported liberal access to abortion would simply cite the Supreme Court’s ruling and regard that reference as obviating any need to discuss the morality of abortion or consider the social impact of hundreds of thousands of abortions performed annually. Only when the pro-life movement appeared to be succeeding did the pro-choice movement become energized and outspoken in defending the right to an abortion on political grounds, although even now it tends to avoid discussing the ethical dilemma underlying abortion.

Most Americans seem uncomfortable with a climate in which, as Jo McGowan puts it, “the destruction of unborn children is acceptable.” They regret the moral side-effects of a regime of abortion-on-demand: irresponsibility in sexual conduct, evasion of obligations by putative fathers, devaluation of children, and intolerance for the dependent, “inconvenient” members of our society. By framing abortion as a nearly unqualified constitutional right, without fully considering the claims of fetal life, we have not taken a stride to a more virtuous society. Instead, we have done great harm to our sense of community and responsibility and respect for human life. Mary Ann Glendon asks us to consider “what a set of legal arrangements that places individual liberty or mere lifestyle over innocent life says about, and may do to, the people and the society that produces them.”

The Supreme Court, by loosening the rigid structure of Roe in recent decisions and approving legislative attempts to ensure informed consent and familial participation, has restored some measure of democratic dialogue to the abortion debate. Nevertheless, the Court continues to adhere to the core holding of Roe establishing a fundamental right to elective abortion prior to viability. Indeed, in the 1992 decision of Planned Parenthood v. Casey , three justices in the majority characterized their decision to preserve Roe v. Wade as a principled refusal “to surrender to political pressure,” arguing that “to overrule under fire” would threaten the continued legitimacy of the Court. Thus, the very attempt of the people to engage in moral disputation with the Court and to challenge the legitimacy of an earlier decision was taken as proof of the need to maintain cloture on debate. The Court held onto the basic Roe formulation for the express reason that to do otherwise would suggest that they listen to and could be moved by moral dialogue.

In a particularly disturbing passage in the Casey opinion, the three deciding justices deliberately adopted the role of moral prophecy for a stubborn and recalcitrant people. They proclaimed that the loyalty of the American people to constitutional ideas would be “tested” by following the Court’s resolution of the abortion controversy. The urgings of the legal academy to assume an exalted position as national moral tutor appear to have been heeded, even by a purportedly conservative Supreme Court.

If the right to abortion announced by the Supreme Court in Roe and adhered to in Casey were truly grounded in the text or history of the Constitution rather than reflecting what Justice White termed an “exercise of raw judicial power,” moral qualms would provide no basis for avoiding the constitutional directive. I do not expect to find my moral philosophy codified in the Constitution, and others may find the moral claim of fetal life outweighed by compelling interests of equality and individual autonomy. But if we are to have a lively and fully textured exploration of matters of moral seriousness, both sides of the debate must figure in the calculation. By pointedly neglecting one side of the issue, Roe v. Wade stands as an obstacle to meaningful moral deliberation. Moreover, this was an occasion upon which the Constitution was silent. The Court thus lacked any warrant for projecting its commanding voice into the moral discourse about abortion.

Litigation is not a friendly forum for a balanced discussion of the wide range of values and concerns relevant to disposition of a public issue. Constitutional litigation and adjudication force communication along a narrow path, for the focus of legal advocacy is upon rights and wrongs. The values of responsibility, respect for others, and moral character are largely missing from what Professor Glendon calls the “rights talk” of the courtroom. The adversarial process encourages a winner-take-all attitude and suppresses compromise and accommodation.

The Supreme Court itself has hardly been immune to the centrifugal tendency to adopt extreme characterizations of opposing positions, as evidenced by the readiness to label legislative decisions with which the Court disagrees as “irrational,” “prejudiced,” “invidious,” “suppressive,” and “defiant.” Robert F. Nagel remarks that we “legal academics have been so busy applauding the judiciary’s theoretical capacity for elevated dialogue and sensitive moral decision making that we have not much noticed the tenor of much of what the judges have actually had to say.” By moving beyond legal reasoning to resolving questions of moral and political values, the Court loses the characteristics of impartiality and independence from politics that are fundamental to its legitimacy.

Moreover, the forum of the courtroom and the language of the law are alien and alienating to the average person. By granting preeminence to the courts, we close the door on those who do not have access to the legal process and, in a practical sense, to those who do not possess a degree in law. Constitutional litigation by its nature is exclusionary. To participate effectively in a constitutive dialogue carried on in the venue of the courts, one must be a member of the priestly class of our civil religion: a lawyer or someone with a large measure of legal knowledge.

“Just as legal language is different in kind from ordinary language,” Frederick Schauer suggests, “constitutional language may be different in kind from other legal language.” The dialogue of constitutional litigation is thus twice removed from the ordinary discourse of the people. Granting the Supreme Court supremacy in conducting discourse about values through the mechanism of judicial review disempowers the people from full participation in their government and their communities.

The authentic voice of the people may be heard in their homes, neighborhoods, churches, synagogues, and voluntary organizations. The people do not speak in the language of the law; they do not talk of texts, precedents, doctrine, multi-pronged tests, or the balancing of factors. Instead, they speak of affection, moral duty, and commitment, as well as of needs and rights. We need to encourage and strengthen their voice, not by more and better Court decisions or laws, but by removing the impediments to involvement in the community. The neighborhood picnic and the school meeting are more important than the test case. The democratic vision offers, Robert A. Dahl writes, the hope “that by engaging in governing themselves, all people, and not merely a few, may learn to act as morally responsible human beings.”

The Constitution is an inspired and inspiring document. The framers and ratifiers intended it to be a permanent text, establishing fundamental and immutable principles for republican government. Even this sacred blueprint of national values, however, sketches only a part of the cathedral of moral discourse in America. Stephen L. Carter warns that we must not fall into the error of speaking “as though the Constitution and the decisions explicating it constitute the whole of public morality.”

More important, the question is not only whether to choose between the legislature and the judiciary in making value choices, but also whether law and politics-particularly law and politics emanating from the national centers of government-should play such a predominant role in moral discourse. The heart and soul of American life remains in what Professor Glendon calls the “law-free spaces, where social life is left to the regulation of norms other than those of state-guaranteed law.”

The preeminent role that leading legal scholars would grant to the courts-and thus to the state-to define social values would undermine the value-constitutive role of intermediary institutions. As often as it has been a friend, government has been an adversary of mediating structures. Law and politics have expanded to fill every nook and cranny of society, crowding out the moral-cultural realm of our lives and displacing associational and family initiative. Public assistance programs discourage individual and familial responsibility while simultaneously shielding self-destructive behavior from the sanction of economic consequences. Busing of school children to promote racial balance in classrooms removes children from their neighborhood schools and destroys a sense of community. Officious social engineers of both the right and the left abuse the public schools to promote parochial agendas, whether by sanctioning the recitation of prayers over the school loudspeaker or by the distribution of contraceptives despite parental objections, thereby undermining parental authority and impairing the ability of parents to form their own family values. When government then attempts to respond to the social problems caused by the breakdown of private intermediary institutions, its new programs invariably weaken traditional structures further and make matters in some important respects worse. Government social policies, according to Nathan Glazer, are “making no steady headway against a sea of misery.”

Family and community may be experiencing a revival today-despite, not because of, government policy. The yearning for community may be reflected in the revival of cities in the American heartland, where neighborhoods survive and private society thrives. A sense of community has been restored when residents of urban neighborhoods have been given responsibility for improving their own lives and a voice about decisions in their communities. As members of the baby boom generation become parents, they have returned to church with their children. Significantly, however, the liberal mainline Protestant churches, which had grown to resemble and imitate the surrounding secular society, have declined in membership while growth continues in the evangelical and Catholic churches that have created communities of deeply shared meaning. There is an increasing consensus about the value of intact two-parent families, together with an understanding of the social risks posed by increases in births outside of marriage. Although family planning experts still scoff, abstinence programs sponsored by private organizations and churches have successfully reached hundreds of thousands of teenagers, who are learning the reward of postponing sex and avoiding pregnancy.

This revitalization of values and community is not proceeding from a creative and exciting new program devised by the best and brightest in the federal government or from a judicial edict issued by the Supreme Court. Rather, at the grassroots level, we are seeing new strength in and appreciation of local communities and private intermediary institutions.

The Constitution begins with the words, “We the People of the United States.” We, the People, still grow up in families, live in neighborhoods, attend local schools, and belong to churches, synagogues, and voluntary organizations. It is here, in our local communities, that we must nourish values and a sense of belonging. It is here, where the moral bonds of voluntary attachment have not yet been stretched beyond the breaking point, that true moral discourse can be maintained, especially, as Michael W. McConnell says, “over the highest things-matters of ultimate truth and value.” It is here that we must seek and realize our aspirations for the future.

Gregory C. Sisk is Associate Professor of Law at the Drake University Law School.