By Thomas Kleven, Professor of Law, Thurgood Marshall School of Law Presented at Nigerian Judges Conference, “The Role of Judges in Leading Change and Transforming the Judiciary and Justice Delivery”, Houston, Texas, August 9, 2023
© Consent of author first sought and had.
I have been asked to discuss the current jurisprudential and ideological direction of the judiciary in the United States. I propose to approach the topic from the perspective of judicial review, meaning the authority of the judiciary in a democratic society to declare the actions of other branches of government, and in particular of the legislative branch, to be invalid on the ground that those actions violate higher-order law as set forth or implicit in the society’s constitution.
Although judicial review is fairly common in the world today, it does not have an extensive history. Judicial review began in the United States in the early 1800s, but was only adopted elsewhere starting in the mid-1900s, influenced I would say by the US’s experience. The legitimacy of judicial review has been debated in the United States from its inception. That’s because, unlike Nigeria’s Constitution which explicitly provides for judicial review, there is no such provision in the US Constitution. Rather, the Supreme Court found judicial review to be implicit in the Constitution, thereby empowering itself to declare invalid the actions of other branches of government.
But even if explicitly contained in a constitution, I think it necessary to examine judicial review’s legitimacy. What is the justification in a democratic society for empowering unelected judges who are not directly accountable to the people and who serve for extended periods of time (for life in the US) to declare invalid the actions of the people’s elected representatives? The usual justification is that a body that is somewhat independent of the political process, thereby enabling it to withstand short-term political pressure, is needed so as to prevent abuse of power by the other branches of government—as when the majority uses its power to tyrannize the minority or to deny fundamental rights that the society owes to all its members. While this justification is now widely accepted, concerns about the legitimacy of judicial review underlie the on-going jurisprudential and ideological debates that are the subject of my presentation. These debates pose the question of how to ensure that the judiciary, while checking abuse of power by other branches of government, does not abuse its power and attempt to impose its views of the good society—in the manner (say) of Plato’s philosopher kings.
I need to start by defining some terms. Let’s begin by distinguishing between jurisprudentially-based and ideologically-based decision-making. By jurisprudentially-based decision-making, I mean decision-making based on principled analysis and reasoning. As applied to judicial review, principled analysis and reasoning requires judges to ask whether the other branches of government are acting consistently or inconsistently with the democratic principles enshrined in the constitution (or perhaps with natural law to the extent that it contributes to a proper understanding of the constitution). To prevent the judiciary from abusing its power and imposing its views on society, its responsibility is to engage in jurisprudentially-based decision-making so defined. What matters is not the judges’ personal views about the good society, but the democratic principles set forth in the constitution.
By ideologically-based decision-making, I mean decision-making based on a judge’s beliefs, values and ideas, which may or may not derive from principled analysis of the democratic principles set forth or implicit in the constitution. Here it is necessary to distinguish between a judge’s jurisprudential ideology and the judge’s political ideology. Broadly defined, an ideology refers to any system of beliefs, values and ideas. In this sense, one’s religion or philosophy of life is an ideology. And so are the democratic principles enshrined in a society’s constitution. But as long as a judge engages in principled analysis and reasoning in interpreting the constitution, he or she is practicing jurisprudentially-based decision-making. In short, two judges engaged in principled analysis of the constitution can interpret it differently and still be said to be practicing jurisprudentially-based decision-making. It’s just that the judges have different jurisprudential ideologies, different views if you will about the meaning of the democratic principles enshrined in the constitution and about how to go about deciphering the constitution’s meaning.
A judge’s political ideology, on the other hand, refers to the judge’s personal views derived from something other than principled analysis of the meaning of the constitution. For example, a judge might have views about whether some law being challenged is good policy, whether the law does or doesn’t promote the general welfare. Many, if not most, issues facing a legislature can be resolved in a variety of ways that are consistent with the constitution and about whose wisdom legislators can legitimately disagree. The judge’s job is not to decide which side is right because then the judge is not acting as a judge but as a legislator promoting his or her political ideology. Rather, the judge’s job is to decide whether the law is consistent with the constitution based on the judge’s jurisprudential ideology. If it is constitutional, the judge is obligated to uphold the law even if he or she would have voted against it as a legislator; and if it isn’t constitutional, then the judge is obligated to invalidate it even if he or she would have voted for it as a legislator.
Now it would be relatively easy to tell whether a judge is practicing jurisprudentially-based decision-making or advancing his or her political ideology if the meaning of the constitution were clear-cut. But that is never so in cases of any moment, where the meaning of the constitution’s provisions demands interpretation and where plausible arguments are possible for differing interpretations yielding opposite results in actual cases. In fact, I would assert that there is no definitively or categorically correct interpretation of a constitution’s provisions.
Interpretive debates arise even when the provisions appear clear-cut on their face. For example, the First Amendment of the US Constitution states that the government shall make “no law” abridging the freedom of speech. Literally, that bans any and all laws regulating speech. But that cannot be what the framers of the First Amendment intended and would be an inappropriate way to apply the First Amendment in practice because some speech has no place in a democratic society. For instance, such an interpretation of the First Amendment would ban laws regulating libel and thereby entitle people to spread knowing and malicious lies about their fellow citizens.
So, in interpreting the First Amendment the Supreme Court has had to decide what types of speech can and cannot legitimately be regulated. But where to draw the line between legitimate and illegitimate regulation of speech is highly debatable, which helps explain why free speech cases often have both majority and dissenting opinions and why that line is often drawn differently in different societies. For example, some societies recognize a right of privacy on the part of public officials and regulate speech, even if true, about their personal lives, whereas in the United States truthful speech about the personal lives of public officials is fair game. A contemporary example is hate speech that denigrates people based on their race or other factors, which is punishable in many societies but might well be protected in the US where such laws have yet to be enacted or tested. While I personally favor such laws in some circumstances and if carefully drafted, I acknowledge that their legitimacy is debatable and that judges conscientiously engaging in jurisprudentially-based decision-making could disagree about their legitimacy.
The interpretive problem is even more complex when the meaning of constitutional provisions is not clear-cut. Many constitutional provisions contain vague or open-ended terms that cannot be put into practice without examining what democratic principles say about their proper application in particular contexts. For example, the Fifth and Fourteenth Amendments to the US Constitution prohibit the government from depriving people of life, liberty or property without due process of law and from denying people the equal protection of the laws. The Supreme Court has decided many cases over the years contesting the proper interpretation of due process and equal protection, and it should not surprise us to find vigorous disagreement among judges and scholars about the proper interpretation. Nigeria’s Constitution too contains similarly vague provisions. For example, the judiciary may not invalidate laws that impinge on the Fundamental Rights protected in Chapter 4 of the Constitution when such laws are “reasonably justifiable in a democratic society.” I am not sufficiently familiar with the case law to know how this provision has been interpreted. Would I be wrong to suppose that judges frequently disagree about when a law impinging on fundamental rights is reasonably justifiable?
As an aside, and so as to illustrate the difficulty of interpretation when plausible arguments can be made for differing interpretations yielding opposite results in cases, I want to recall for you a passage in a novel by James Michener entitled The Source. The novel is about an archeological dig in Israel, and at each level of the dig Michener relates a story about events in that era of history. At one level we encounter an African who is a sophist and whose particular skill is the ability to make convincing arguments on both sides of any question. The question is whether God exists. Michener has the sophist make a very convincing argument for God’s existence, following which he makes an equally convincing argument for God’s non-existence.
Any good lawyer, I would assert, can do the same thing with respect to any contested constitutional provision. So, given the possibility of making plausible arguments on both sides over the proper meaning and application of constitutional provisions, how do we tell which is the proper interpretation? And how do we even know whether a judge is actually engaging in jurisprudentially-based decision-making or is deciding a case based on his or her personal policy preferences? No judge would ever admit that in an opinion, and any skilled judge could easily write an opinion sounding in jurisprudentially-based decision-making as a means of disguising a decision actually based on his or her political ideology.
With the foregoing as a lead-in, I want now to discuss three possible ways of ensuring that judges will engage in jurisprudentially-based decision-making and not use their power to promote their personal political ideologies. The first has to do with the methods judges use to interpret the constitution, the second with the means of selecting judges and limiting their exposure to improper influence, and the third with the impact of public opinion on judges’ decision-making. The purpose of all these measures is to create within the judiciary a culture in which judges understand their responsibility, and have the incentive, to practice jurisprudentially-based decision-making.
As for methods of interpreting the US Constitution, there has been an on-going debate over the past few decades about the proper method.[i] There are two main approaches, which overlap a bit and have internal nuances. One approach is referred to as originalism or textualism and the other as living-law or progressive constitutionalism.
Originalism posits that the Constitution should be interpreted in accordance with the intent of the framers, determined by how they applied or would have applied the contested provision in their time, or by the meaning that the words in the document had at that time either within society at large or within the learned professions, or by consulting long-standing traditions within that society or within the greater community of societies from which the Constitution emanated (Europe, that is, in the case of the US Constitution). For judges to decide cases otherwise, say originalists, is to act as unelected legislators imposing their political ideologies on society contrary to democratic principles.
The living-law approach, in contrast, believes that the precise intent of the framers is often unascertainable, that the framers could not possibly have anticipated the myriad of circumstances in which the Constitution would be called into play in the future, that traditions and societal mores change and must be allowed to change over time, and consequently that the meaning of the Constitution’s provisions must be allowed to evolve over time so as to remain relevant as guiding principles. Indeed, some argue, the use of vague or open-ended language in the Constitution, like due process and equal protection, shows that the framers intended the Constitution’s meaning to evolve over time. And, say its proponents, living law is true to democratic principles so long as judges’ decisions are jurisprudentially-based and responsive to the temper of the times.
While I lean toward the living-law approach, I don’t think it fair to say that either originalism or living law is necessarily the correct way to interpret and apply the Constitution. As a practical matter, originalists are in general on the conservative side of the political spectrum, favor the private market and limited government, and support traditional family values; whereas living law’s adherents tend to the liberal side of the political spectrum, believe in the need for government intervention to counter the defects of the private market, and are open to a wide diversity of lifestyles. These differences between the two schools suggest that their interpretive approaches may derive as much from their political ideologies as from their jurisprudential ideologies. And, since I see myself in the liberal-progressive camp politically, perhaps that helps explain why I find the living law approach more convincing.
The issue of a woman’s right to choose to have an abortion illustrates well the interplay between interpretive approaches and political ideologies. In Roe v. Wade,[ii] decided in 1973, the Supreme Court struck down laws prohibiting or overly restricting abortion as violating a woman’s fundamental right of privacy with respect to reproductive matters. While the interpretive methodologies discussed here were not then well developed, Roe clearly falls within the living law approach. Although abortion was socially unacceptable when the Constitution was adopted in the late 1700s and by the early 1900s was banned in every state, support for a woman’s right to choose grew over the 20th Century, and at the time Roe was decided abortion was legal in many states and was supported by a majority of the public. In Roe, the Court responded to the temper of the times, perhaps partly for political reasons and partly based on a good faith attempt to decipher the appropriate reading of the Constitution in the context of the times.
But times have changed again over the past fifty years, there has been a swing to the right politically, and the Supreme Court is now dominated by justices who profess to be originalists. And so, in 2022 the Court reversed Roe in the Dobbs case[iii] in a distinctly originalist opinion that returned the issue of abortion to the political process, following which a number of states have banned or severely restricted a woman’s right to choose. One might contend that this is an example of the law’s evolution again in response to changing times. What hasn’t changed since Roe, though, is public opinion. In fact, a strong majority of Americans support a woman’s right to choose and that support is at its highest level ever. This fact has led many commentators to charge that the originalist tenor of the Dobbs opinion is a smokescreen behind which is a political process that is not working democratically and has produced a Supreme Court that is dominated by justices bent on furthering their conservative political ideologies.
So, how did these justices find their way onto the Supreme Court? This leads to the second way of ensuring that judges practice jurisprudentially-based decision-making, namely the means of selecting judges and limiting their exposure to improper influence.
The process of selecting judges is highly politicized in the United States—far more so than the process set forth in Nigeria’s Constitution, although I am not knowledgeable enough to say whether that process produces more impartial judges than in the US and I’d be interested to hear your thoughts. In the US, Supreme Court justices are nominated and appointed by the President with the advice and consent of the Senate. When the Presidency and the Senate are controlled by the same party, that party controls the selection process and the President usually gets his (and hopefully one day soon her) way; when different parties control the Presidency and the Senate, some negotiation and compromise is necessary. Either way, a President will only nominate and will ultimately get judges who are at least somewhat supportive of his or her political agenda.
So, in the years between Roe and Dobbs, Republican candidates relying on the support of the anti-abortion movement frequently campaigned pledging to appoint justices committed to overturning Roe. And with the Republican political resurgence over the past few decades, anti-abortion justices came to dominate the Court and a woman’s right to choose was overturned. And if and when the Democratic Party controls the selection process and is able to appoint enough justices supportive of a woman’s right to choose, the Court will likely overrule Dobbs and restore that right. In short, the selection process by its nature tends to produce justices with political ideologies and who with life tenure are in a position to use their power to further their ideologies for a considerable period of time.
One possible way to counter the politicization of the selection process and promote impartiality in the Court’s decision making is to limit the justices’ time in service on the bench, as does Nigeria per its mandatory retirement ages, so as to produce greater diversity within the Court. At this point, the discussion about term limits is in its early stages. A second possibility, so as to induce justices to limit the impact of their political ideologies on their decisions, is to require justices to inform the public of their political activities while in office and to recuse themselves in cases where they may have conflicting interests. Currently, the Court largely polices itself and is not subject to the legal requirements applicable to other public officials. But recent reports that a number of sitting Supreme Court justices have failed to disclose that they or their family members have received substantial gifts from wealthy people with political agendas and have had business dealings with potential litigants, and that they have participated in cases in which those parties were involved or had an interest, have given rise to efforts to impose higher ethical standards on Supreme Court justices. But so far Congress has failed to act, in large part I’d say due to the intense divisions within the political process today.
Now let’s turn to the third way of ensuring that judges practice jurisprudentially-based decision-making, namely public opinion.[iv] While due to their relative independence from the political process Supreme Court justices are not directly responsible to the electorate, still they must and often do pay attention to public opinion. That’s because the Court lacks the enforcement tools available to the legislative and executive branches and must rely on public support to induce the other branches to comply with its rulings. Historically, the Court has been held in high regard by the public and has had approval ratings far higher than Congress and the President, due no doubt to the aura of impartiality that the Court has been able to cultivate. But, due likely to the controversiality of many of its decisions and to recent revelations raising questions about the justices’ ethics, the Court’s approval ratings have been declining. It remains to be seen whether this will induce Supreme Court justices to rein in their political ideologies and decide cases more impartially.
So far, we have been discussing whether from a theoretical perspective judicial review is consistent with democratic principles and whether the judiciary can contribute to the advancement of the democratic ideals embodied in a society’s constitution. My view is that it can if adequate measures to ensure its impartiality are in place and are functioning well. The proper interpretation of constitutional provisions is subject to continual debate and is never definitively settled. Rather, society at large is engaged in an on-going dialogue among all its members, including elected officials, the public and the judiciary, about what its constitution means. Due to its relative independence from the political process and its expertise as students of the constitution, the judiciary can contribute positively to the dialogue.
But whether in practice the judiciary makes a positive contribution demands an evaluation of its work over time. No single case can answer that question because sometimes we will conclude that a court’s decisions advance democracy and sometimes not. So, the question is whether on balance the judiciary’s contribution has been positive. As for the United States, I’d say that’s still an open question.
Some Supreme Court decisions have been highly praised for advancing democratic principles. A classic example is Brown v. Board of Education,[v] decided in 1954, in which the Court struck down state laws requiring the segregation of the races in public schools, the purpose and impact of which was to relegate African Americans to an inferior education and to promote white supremacy. But 100 years earlier, in the infamous and obviously undemocratic Dred Scott case,[vi] the Court for the very first time struck down an act of Congress, an act that prohibited slavery in some territories that were not yet states, on the ground that the law deprived slave owners of their property without due process or just compensation. The Court referred to people of African decent as “a subordinate and inferior class of beings,” who were “altogether unfit to associate with the white race either in social or political relations,” and who “had no rights which the white man was bound to respect.”
Lest we think that Dred Scott is an aberration and an unfortunate relic of the past which has now been undone, even the Brown case has a checkered history. Several scholars have argued that, despite declaring that “[s]eparate schools are inherently unequal” and deny African Americans an equal educational opportunity, Brown was designed to promote the interests of the United States as a world power, in that if it continued to practice official apartheid it might become an international pariah like South Africa. And in a recent article, I argued that Brown ushered in a class-based and colorblind racism that has perpetuated the inequalities resulting from the country’s racist history and from which the black community as a whole still suffers. And I argued that the Supreme Court has given this colorblind racism its stamp of approval.[vii]
I will cite four examples. First is a case in which the Court struck down a provision in the Voting Rights Act requiring states that historically denied African Americans the right to vote to obtain federal approval of changes in their voting practices.[viii] Second is a case in which the Court upheld the right of suburban communities to adopt zoning ordinances that push the cost of housing beyond the means of lower income people and disproportionately exclude people of color from living there.[ix] Third is a case in which the Court struck down efforts of school districts to promote integration by taking race into account in assigning children to school.[x] Fourth is a case decided this past June in which the Court struck down the affirmative action measures that many universities have used to attain racial diversity in their student bodies.[xi] From my perspective, all these rulings undermine the democratic principles set forth in the Constitution. When I was a law student in the 1960s, an era in which there were a number of Supreme Court decisions advancing basic human rights, I and many of my fellow students applauded the Court and looked to judicial review as contributing to a more democratic society and to the democratic vision underlying the Constitution. But a more long-range perspective and subsequent Supreme Court rulings have left me skeptical about whether on balance the judiciary has been a positive force. Ultimately, it seems to me, the United States or any society will only achieve a vibrant democracy if the people of the society demand it and organize a movement to make it happen. I feel the same way about Nigeria as it strives to realize the highly democratic vision contained in its Constitution, and I look forward to hearing your comments on whether Nigeria’s judiciary is contributing to that process.
[i] For a sampling of the literature, see Jack Balkin, Living Originalism (2011); Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (1962, 1986); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980);Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991, 2008, 2023); Lawrence G. Sager, Justice in Plainclothes: A Theory of American Constitutional Practice (2004); Mark Tushnet, Taking the Constitution Away from the Courts (1999); Adrian Vermeule, Common Good Constitutionalism (2022).
[ii] 410 U.S. 113 (1973).
[iii] Dobbs v. Jackson Women’s Health Organization, 142 S.Ct. 1221 (2022).
[iv] See Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009).
[v] 347 U.S. 483 (1954).
[vi] Dred Scott v. Sandford, 60 U.S. 393 (1857).
[vii] Thomas Kleven, “Separate and Unequal: The Institutional Racism of the Supreme Court,” Alabama Civil Rights & Civil Liberties Law Review (Vol. 12.2:276-93, 2021).
[viii] Shelby County v. Holder, 570 U.S. 529 (2013).
[ix] Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977).
[x] Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).
[xi] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Students for Fair Admissions, Inc, v. University of North Carolina, 2023 WL 4239254.
