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Challenging the Almighty Supreme Court

Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
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Maybe everybody’s being too hard on William Baude. In an op-ed article in Tuesday’s New York Times, Baude proposed that should the U.S. Supreme Court strike down the Obama administration’s interpretation of a key provision of the Affordable Care Act, the president might follow the example of Abraham Lincoln in refusing to apply the ruling to anyone other than the plaintiffs in the case.

You’d have thought the sky had fallen.

Criticism poured in. Ethan Blevins of the Pacific Legal Foundation protested that the country “deserves an executive branch that honors this basic notion of separated powers.” James Taranto in the Wall Street Journal thundered that “disrespect for the judiciary is one thing; open defiance is a considerably more radical step.” And the critics were hardly limited to the right. My fellow Bloomberg View columnist (and former student) Noah Feldman warned that Baude’s idea would represent “a flagrant violation of the rule of law.”

Well, let’s slow down a minute. Baude, who teaches constitutional law at the University of Chicago, has presumably thought through all of these implications. Although one might be tempted to say that he is engaged in special pleading on behalf of a deeply flawed and terribly rushed piece of legislation, I’d like to suggest that there’s more to his critique than might be first apparent.

It’s not the rule of law that Baude is challenging. It’s the rule of courts -- and that’s a very different thing. In the U.S., we are raised to an ideology of judicial supremacy. We leave tough questions to the judges, and the judges fix them. Among legal scholars, however, the institution of judicial review has lately been undergoing something of a crisis, of which Baude’s provocative suggestion is just one more sign.

It’s about time.

The Supreme Court long ago degenerated from the glorious unanimity of the desegregation battle to the era of sharply divided decisions, where the justices snipe at one another in footnotes. It should hardly be surprising, then, that over the past 10 or 15 years, leading constitutional scholars have begun to raise questions. Jeremy Waldron, a professor at New York University School of Law, contends that public debate is often richer in countries that leave the most divisive issues to popular decision. Academic work, he argues, is also impoverished by its court-centeredness, to the point where legal scholars “are intoxicated with courts and blinded to almost everything else by the delights of constitutional adjudication.”

Larry Kramer of Stanford University, in his 2004 book “The People Themselves,” argued that the Framers designed the courts as a vindicator rather than a violator of popular sovereignty, and that judges -- even at the Supreme Court level -- should act with the understanding that the people of the United States are “a higher authority ... with power to overturn their decisions.” Harvard's Mark Tushnet, in “Weak Courts, Strong Rights,” points out that countries without American-style judicial review often provide stronger protection of rights, including more generous social welfare benefits.

Even Erwin Chemerinsky, dean of the law school at the University of California at Irvine, who a decade ago was criticizing the critics of judicial review, has lately argued in “The Case Against the Supreme Court” that the justices rarely take positions that truly protect the powerless -- so rarely that he at least implicitly questions whether the institution is owed the deference we accord it.

There is more going on here than a few academics playing the role of intellectual agents provocateurs. The Baude essay that has caused so much tumult only lifts the cover from a larger battle. Something has come undone. The old consensus has unraveled. The days when only segregationist governors questioned the absolute authority of the Supreme Court are a distant memory.

What’s the cause of the court’s fall in status? Blame whom you like. Partisans tend to dislike the courts when they dislike the decisions. If you’re of the left, you might think the problems exist because the justices ruined the 2000 election and upheld the rights of the rich to fix the next one. If you’re of the right, you’re likely sure it’s really due to Roe v. Wade and its progeny.

Or perhaps it’s the fault of politicians who run for office promising to see to it that on their watch the Supreme Court will comprise only individuals who’ve made up their minds in advance about every controversial issue -- and who can therefore be relied upon to vote the party line. (One wonders why we don’t just go ahead and elect the justices directly.)

Maybe it’s the fault of the news media, which report decided cases without bothering to say much about the reasoning, thereby teaching the public to think of the justices as legislators. Then there’s presidential election time, when pundits undertake a disgusting death watch, speculating on which members of the court are the sickest, and how many justices the next occupant of the Oval Office might get to appoint.

The Supreme Court just doesn’t conjure the mystique that it used to. We’re well past the days when a serious book on constitutional theory could be a runaway national best-seller. (That would be Charles Beard’s “The Republic,” published during the Second World War.) “The Brethren” is more to our taste. The justices, once popularly described as dwelling on a distant Olympus, have fallen to earth.

The administration is unlikely to take Baude’s advice (even though some critics say it’s happened already), and I think the president’s counselors would be ill-advised even to consider it seriously. But that doesn’t mean Baude is outside the mainstream. Quite the contrary. With the institution of judicial review under assault in the law schools, it’s only a matter of time until doubts about the old-time consensus creep into public debate. And maybe that’s a conversation worth having.

  1. I had my own brief Baude moment when I made an analogous argument in a 1988 op-ed article in the Wall Street Journal. There were no blogs or Internet comment threads back then, of course. So whenever I traveled to a conference, I was bashed by friends and colleagues instead.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Stephen L Carter at scarter01@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net