David Strauss, The Modernizing Mission of Judicial Review, 76 U. Chi. L. Rev.  859 (2009).

In a field that crackles with normativity, David Strauss has written an article that provides a genuinely illuminating description of the rationale that underlies many recent Supreme Court decisions.  The Court, he argues, often follows a principle that he describes as “modernizing.”  This consists of two basic elements.  The first is that the Court will apply a sort of strict scrutiny to any statute it regards as “out of step with current popular sentiment” and will invalidate the statute if there is any possible doctrinal ground for doing so.  The second element is that the Court will reconsider its decision if subsequent events show that its conclusion was mistaken and that the statute actually had popular support.  Modernization is rarely invoked as the sole basis for a decision, according to Strauss, but it is not a subconscious tropism or a clandestine connivance either.  Rather, it functions as a supporting principle that appears regularly in the opinion’s rationale.

Strauss supports his observation with an extensive and thoughtful survey of recent Court decisions.  Exhibit A for the first element of modernization are the Court’s Eighth Amendment decisions, specifically Roper v. Simmons (forbidding execution of a minor), Atkins v. Virginia (forbidding execution of a mentally retarded person), and Kennedy v. Louisiana (forbidding execution for the non-lethal rape of a child).  In all these cases, the Court noted that the death penalty was an archaic provision that conflicted with the general tenor of popular opinion.  Exhibit A for the second element of modernization are the 1972 decision in Furman v. Georgia, where the Court declared capital punishment to be cruel and unusual, and the 1976 retrenchments, including Gregg v. Georgia, where the Court upheld the death penalty after 35 states reenacted death penalty statutes.  Other cases that reveal the Court’s modernizing inclinations include Virginia v. U.S., which struck down VMI’s refusal to admit women, Griswold v. Connecticut, and Lawrence v. Texas.  Strauss includes some other cases that push his point a bit too far, such as Moore v. City of East Cleveland, but, generally speaking, he makes his case in a convincing manner.

Since this is a constitutional law article, it would be genuinely weird to end it after advancing a descriptive observation and have nothing normative to say.  So Strauss goes on to provide an assessment of the pattern that he has discerned.  But he resists the natural temptation to tout his astute observation as a solution to the dilemma of judicial review or to condemn it as evidence that the institution should be abolished in its entirety.  Modernization, he notes, has some good features and some bad features.  One of its good features is that its first element (invalidating archaic statutes) serves a democracy-reinforcing function; it overturns laws that the public does not want but that survive due to the institutional inertia that afflicts the legislative process.  Another good feature of modernization is that its second element (retrenchment in the face of renewed support) defers to the political process; if the Court has misjudged popular sentiment, it stands ready to reverse itself.  These two features track two of the basic principles of the Legal Process School, the first being essentially Carolene Products footnote 4 and the Choper-Ely analysis, the second being akin to Bickel’s passive virtues.  They raise the issue of judicial competence, of course, but Strauss responds by noting that modernization “resembles the traditional role of common law courts,” a point he has made in his previous writing about the constitutional decision making process generally.  (In a remarkable display of academic self-restraint, he declines to cite himself; the Strauss whose article appears in the footnotes to this section is Peter).

There is also, Strauss notes, a serious disadvantage to the modernizing approach.  “The problem is that the courts may be too ready to yield to the political process and may therefore fail to vindicate principles that courts, and courts alone, are well suited to enforce.”  (P. 900). This strikes me as a crucial point, perhaps because I agree with it (I don’t really agree with Strauss about the good features of modernization because they rely on the concept of “democracy” and the U.S. isn’t really a “democracy” – it is a representative republic).  The reason I like Strauss’ critique of modernization is that it resists what I would call the Populist turn in modern constitutional theory.  Both originalist and evolutionary theories have acquired a strongly Populist flavor in recent years.  The older approach to originalism focused on the intent of the Framers, members of a narrow elite in terms of either wealth or education.  Its new version rests on the beliefs of the ratifying public, that is, everyone who possessed the franchise when the document was submitted for approval.   Similarly, evolutionary theories were traditionally based on the judiciary’s special skills, theirtraining as members of an exclusive profession.  Current evolutionary theories, in contrast, look to public attitudes, as reflected in observable events such as social movements, decisive elections or public discourse.

The turn to Populism solves certain difficulties that have bedeviled both originalist and evolutionary theories.  It frees originalism from the unseemly ancestor worship directed toward a small group of propertied, often slave-holding quasi-aristocrats.  It frees evolutionists from relying on the judgments of a narrow class of elderly, upper middle class or wealthy jurists, whose ability to discern public sentiments is open to serious question.  But these advantages come at a severe cost; they undermine the basic value of judicial review, the value that had led to its inclusion in virtually every modern constitution throughout the world.  Judicial review is the first legally established mechanism in the Western World (and perhaps the first since the Hebrew prophets) that can effectively control the public authority that possesses Weber’s monopoly of legitimate force.  In effect, it domesticates the right of revolution that Western political philosophers have been championing for the past millennium, without having the slightest idea how to effectuate.

Of course judicial review is counter-majoritarian, to invoke the Legal Process School once more, but that is its point.  It is designed to impose socially accepted norms on the governing force in the society, to restrain the inevitable tendency of any ruler to betray the basic principles on which its rule is based.  Admittedly, the review is being carried out by an elite, but so is every other governmental function in any system apart from direct democracy, which is a mode of governance that has never been successfully applied to anything larger than a village.  The leading officials in the political branches – the President, the Cabinet, the agency heads, the legislators – are all equally members of the elite.  The poor or working class can never elect their own members to the legislature, because as soon as they are elected, they cease being poor or working class.

Populist theories have become so popular these days, particularly for evolutionary theorists (among whom Strauss obviously belongs), that I genuinely expected him to proceed from his description of modernization to an encomium on its behalf.  I was genuinely surprised when he followed the account of the advantages of modernization – a discussion that depends heavily on Populist thinking – with a criticism of the pattern that he has discovered.  It is not easy, these days, to write something about judicial review that is genuinely illuminating, but to write something that is not only illuminating but surprising is a rare thing indeed.  That’s why Strauss’ article is something I like lots.