How partisan norms impact the Supreme Court
In the following excerpt from Fidelity and Constraint: How the Supreme Court Has Read the American Constitution, author Lawrence Lessig examines how the Supreme Court has interpreted the Constitution throughout history and what that means for today.
At the core of our constitutional tradition lie two fundamental values — liberty and equality. The history of our Constitution in the hands of the Supreme Court has been the constant struggle to keep those values alive as the world around us has changed.
Justices on the Right did that initially most forcefully with economic liberty. Throughout our tradition, they crafted readings of our Constitution that tried to translate its commitment to liberty, despite the growing practical justifications for increased governmental power. These justices crafted limits on the power to regulate economic liberty and on the power of Congress to regulate, in order to preserve autonomy for the states. The objective throughout was to cabin the government’s power, in the name of preserving a space for the individual, or the states.
Justices on the Left did the same for a different liberty — and, more distinctively, for a conception of equality and privacy. They crafted limits on the government’s power to protect the liberty beyond economic rights. And they crafted limits on the government’s power to protect an evolving understanding of the scope of equality and privacy.
In both cases, these practices of translation — manifested always in made-up limits on what the democratic branches can do — have been constrained. They have been practices animated by two-step originalism, or fidelity to meaning; they have been constrained by a persistent fidelity to role. The history of constitutionalism in the Supreme Court is thus the dynamic between these two fidelities. Context enables both. Context constrains both. The practice of interpretation is the practice of applying these two fidelities, subject to the context — the facts, or social meanings, or a Llewellyian “situationsense” — of the time. That history, however, is of an institution, not an idea, and not particular judges. The judges within this institution are humans, not Hercules.
The institution is not self-generating. It requires care and feeding; it depends upon a smart institutional politics to sustain itself when context renders the two-step too costly.
The readings of our Court constitute a practice; that practice is, ultimately, justifiable — at least given the constraints of an old and entrenched Constitution. If the objective is the two-step, then the dance is always subject to, and sometime enabled by, the constraint of role. “Subject to” when, as with commerce or economic due process, fidelity to role pushes the Court away from fidelity to meaning. “Enabled by” when, as with equality or personal liberty, it helps speed the process of recognizing a social understanding that determines how those rights are read.
There is, I fear, a constitutional climate change as well. And as I reflect on the character of these times, I fear the uncontesteds of our time will no longer support the practice I have described.
For so deeply have we allowed partisan norms to infect the institution of the judiciary that we don’t even recognize the essentially nonpartisan character of its past. Not that values have been irrelevant or that partisan values have not mattered. But the practice of constitutionalism stood above them, or beyond them, and the effort to keep alive commitments thought fundamental could therefore flourish.
That practice will not survive a Court perceived by us all to be political.
If justices are openly appointed to reverse the decisions of an earlier Court — as Democrats promise with cases such as Citizens United v. FEC (2010) and Republicans promise with Roe v. Wade (1973) — and if the perception that the work of the Court is only and always inherently partisan continues to climb, then this practice will change. There is a fragility to great institutions of justice that we notice only when they are no longer great. That passing seems almost inevitable just now, as the divisions within our political culture grow.
Though it has stood watch over many great injustices, the Court is still an extraordinary institution within our constitutional tradition. The justices are anonymous, or relatively so. They do their work carefully and personally. No other institution of the Framers’ design works in a way closer to how they imagined it would work — in process, if not in substance.
Lawrence Lessig is Roy L. Furman Professor of Law and Leadership at Harvard Law School. He is the author of many books, including Code 2.0, Free Culture, Remic, and Republic, Lost, and most recently, America, Compromised.
