Judicial Review: Savior or Bogeyman ? (part I)

John Kerry's ridiculous theatrics aside, the impending confirmation of Samuel Alito to the Supreme Court has liberals worried. And they're right: even as Bush is increasingly isolated and powerless, he's moving to firmly ensconce his crumbling ideology in the judiciary for life. As an already rightwing court lurches sharply righward, there are intriguing signs that the American left is rethinking its half-century of faith in the judiciary. While by no means a majority position among liberals, critiques of judicial reivew (for instance, here and here) are beginning to have (and may increasingly have) a greater hearing in the shadow of the Roberts court.

This debate has everything to do with the war on terror. As some of us have argued in the past, judicial review of emergency powers has left an ambivalent record at best. While courts have occasionally acknowledged the passing of periodic bouts of repressive hysteria by the other branches, they are never at the vanguard. More frequently, judicial review of emergency powers has constributed to a normalization of emergencies by accepting elements of crisis government and integrating them within ordinary constitutional limits, leading to a more repressive and authoritarian sense of normality. This is certainly what happened in the disastrous Hamdi v. Rumsfeld case, which is now exhibit A in the AG's defense of domestic wiretapping.

Signs such as this, of a growing skepticism towards judicial reivew among liberals is a welcome trend. Indeed, it would be healthy for the left to return to the attitudes of the 1910's and '20's, when mainstream Progressives such as Charles Beard called for the elimination of judicial review, and the working class rightly regarded the court as an anti-democratic force effectively denying representation to workers (if you have the time, read this for a wonderful history of judicial review during that period). But the left should avoid replacing the naive faith in the Supreme Court as a behicle for progressive social change with an equally naive demonization of the Court as the root of all that's wrong with America. Whenever the Supreme Court has behaved particularly nefariously, it has always done so as a part of society at large, not as a wholly islotated institution (more on this in part II). The critique of judicial review as an institution should not overshadow the failures, and ongoing failings, of the left to directly engage with and pursuade fellow citizens, rather than lobby an unelected judiciary. The Supreme Court has been no friend to the left, especially in recent years. But the real problem has been replacing the need for debate with litigation strategies, and the high court cannot be blamed for that one.