Judicial Review and the War on Terror, Part II. Law and Politics Revisited
In response to our post questioning the efficacy of judicial review of emergency powers, a perceptive reader responded:
"But are you really saying judges shouldn't act when faced with a president claiming the right to torture, to hold people indefinitely without trial, or to violate the laws of Congress? And if your point is that judges are wimps when faced with security issues, isn't that a problem of too little, rather than too much, judicial review?"
This question goes directly to the issue at stake here. Yes, those whose rights have been violated - including detainees of various stripes but also including thousands of immigrants who have been subject to arbitrary and unfair application of immigration law - should have their day in court. Yes, judges should respond when the president violates acts of Congress. There's nothing wrong with courts protecting individual rights; that's a big part of what they are supposed to do, and they should be criticized when they fail to do so.
But, as a matter of political engagement, it is a grave mistake to confine our arguments against the war on terror to the language of legality, or to concentrate our hopes on an unelected branch of government to save us. There are a number of reasons to be skeptical of judicial review as a means of preventing the abuse of emergency powers, and we will be discussing the issue in depth during our upcoming teach in. Here we just want to make one point: framing political problems in exclusively legal language (so that, for example, aspects of the war on terror are objectionable only if they can be shown to be illegal) is a bad political strategy. It implies an alienating discourse that is intended for "experts," it distracts from the need to clarify and convince other people in terms of fundamental values, and it ignores the fact that the constitution is permissive of a range of horrifying laws. Perhaps most importantly, excessive legalism narrows the horizon of our political imagination. A rote insistence on the rule of law forecloses the possibilities of thinking creatively about political transformation.
So, if the question is whether judges should be doing their jobs, we say, fine, more judicial review. But the judiciary is an organ of the state. As a rule, the judiciary will not oppose both branches of the state and defend constitutional rights against emergency powers. The history of the institution reflects this without exception. Under some circumstances, courts can be a forum for defending individual rights, but they cannot take the place of a political movement. Nor can petitioning of the government to protect one's rights take the place of the collective assertion of rights that are not recognized by the state. Our critique of legalism is not about inventing a pure distinction between law and politics (as though such a thing were imaginable). It is about two different visions of political activity: legalism encourages us to petition an organ of the state - the judiciary - to protect our rights for us, and when it fails to do so, it calls for more judicial review. The view we are advocating (in an admittedly experimental and probing sort of way) assumes that rights can only be expanded through their political assertion in the public sphere, and that they must be claimed against the state at times. Here, judicial review is totally ineffective. So if the question is whether there is too little judicial review as a means of the expansion of rights and the assertion of political liberty, our response is that the left would be better off with no judicial review at all.
"But are you really saying judges shouldn't act when faced with a president claiming the right to torture, to hold people indefinitely without trial, or to violate the laws of Congress? And if your point is that judges are wimps when faced with security issues, isn't that a problem of too little, rather than too much, judicial review?"
This question goes directly to the issue at stake here. Yes, those whose rights have been violated - including detainees of various stripes but also including thousands of immigrants who have been subject to arbitrary and unfair application of immigration law - should have their day in court. Yes, judges should respond when the president violates acts of Congress. There's nothing wrong with courts protecting individual rights; that's a big part of what they are supposed to do, and they should be criticized when they fail to do so.
But, as a matter of political engagement, it is a grave mistake to confine our arguments against the war on terror to the language of legality, or to concentrate our hopes on an unelected branch of government to save us. There are a number of reasons to be skeptical of judicial review as a means of preventing the abuse of emergency powers, and we will be discussing the issue in depth during our upcoming teach in. Here we just want to make one point: framing political problems in exclusively legal language (so that, for example, aspects of the war on terror are objectionable only if they can be shown to be illegal) is a bad political strategy. It implies an alienating discourse that is intended for "experts," it distracts from the need to clarify and convince other people in terms of fundamental values, and it ignores the fact that the constitution is permissive of a range of horrifying laws. Perhaps most importantly, excessive legalism narrows the horizon of our political imagination. A rote insistence on the rule of law forecloses the possibilities of thinking creatively about political transformation.
So, if the question is whether judges should be doing their jobs, we say, fine, more judicial review. But the judiciary is an organ of the state. As a rule, the judiciary will not oppose both branches of the state and defend constitutional rights against emergency powers. The history of the institution reflects this without exception. Under some circumstances, courts can be a forum for defending individual rights, but they cannot take the place of a political movement. Nor can petitioning of the government to protect one's rights take the place of the collective assertion of rights that are not recognized by the state. Our critique of legalism is not about inventing a pure distinction between law and politics (as though such a thing were imaginable). It is about two different visions of political activity: legalism encourages us to petition an organ of the state - the judiciary - to protect our rights for us, and when it fails to do so, it calls for more judicial review. The view we are advocating (in an admittedly experimental and probing sort of way) assumes that rights can only be expanded through their political assertion in the public sphere, and that they must be claimed against the state at times. Here, judicial review is totally ineffective. So if the question is whether there is too little judicial review as a means of the expansion of rights and the assertion of political liberty, our response is that the left would be better off with no judicial review at all.
2 Comments:
You write: ... rights can only be expanded through their political assertion in the public sphere, and ... must be claimed against the state at times. It would be helpful if you clarified what you mean here by "political assertion." You say that it would be a "grave mistake" to "confine" arguments against the war to "the language of legality," but who is guilty of such "confinement?" Is it not "political assertion" to point out outrages while simultaneously pursuing them in the courts? Is it mere coincidence that several of your own "political assertions" of outrage, e.g. the excellent post regarding prisoners at Guantanamo, depend on information gleaned through the judicial process, which has been able to penetrate the veil of a secretive government? The dichotomy you are making here seems artificial to me, so I must be missing your point, but it is a point that has seemed to me consistently in need of clarification.
You seem to offer two competing views of political action (judicial review and the intriguing yet-to-be-clarified political advocacy movement you seem to be proposing) and argue that the former is less effective than the latter. However, this doesn't mean that the two are mutually exclusive. It is still possible that, as you suggest, judicial review is so much less ineffective that it shouldn't be used at all. Your arguments seem to fall into two groups: (1) judicial review leads to bad results ("the judiciary will not oppose both branches of the state..."); and (2) judicial review invokes legal culture, which separates us from a non-technical moral response to politics and diminishes the normative engagement of politics into a technocratic sport.
The first argument is the old conlaw argument we all know about, in which we either hate judicial review for being indeterminate (originalists) or for encouraging results on the opposite political spectrum (conservatives during the Warren Court; liberals now). It's hard to respond to this w/o invoking that baggage, but it might help to say that it's a little silly for us to pinpoint judicial review as the issue ("We don't like the judge's opinions, so judge's shouldn't be allowed to have opinions.") Ackerman's recent article on Alito ends on a more pratical note--he argues that we should have limited terms, like the German Constitutional Court. This would seem to accomplish the result of limiting partisanship, etc., without as drastically rewriting the constitution.
The second argument (that a legal culture cuts off political engagement by non-lawyers) makes sense, but is overstated. (Funnily enough, you are making a natural law claim--law is not moral enough!) This argument seems somewhat unrefined, as you appear to be arguing against the larger culture of law, rather than judicial review specifically. Even if judicial review ceased existing overnight, for example, the Democrats could still complain that the NSA spying violated FISA.
Similarly, the vast majority of cases do not involve rights protection. It seems unreasonable to argue that we shouldn't apply judicial review out of fear of de-normatizing politics when the issue is about, say, contract renegotiation, rather than Gitmo.
Additionally, there are obvious reasons that law is technical: to offer tests other courts can apply, to harmonize group activity, to give some semblance of justice to decisions, etc. It's possible that your position as academics has colored the way you see judicial review (i.e., seeing judges as intellectual critics or philosopher kings, rather than say normative inputs or semi-democratic processing devices; also, the way you reject judicial review as an argument, therefore want to dispose it entirely, like a bad argument--however, decision-making in the real world is more pragmatic and incremental.) The function of judicial review might not be intellectual, but a form of natural selection in which courts can try different outcomes, leaving other courts to decide to pick the ones they like.
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