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Constitutional Theory

The Court’s Agenda – And the Nation’s

“Government by judiciary” is the traditional warning from those who seek to limit the power of the courts. Policymaking in a democracy, so the argument goes, should be left to officials more responsive to popular will than judges, who because of their comparative nonaccountability to the public should keep their policymaking to a minimum. Government by judiciary, it is said, is the antithesis of democracy.

The charge of government by judiciary is one side of an old debate, to which there is hardly more to add as a matter of political or constitutional theory. Yet the question of government by judiciary lingers, even as its political and ideological coloration changes. It is this very persistence of the issue that invites us to assess what appears to be one of its fundamental empirical premises – that the courts are on the verge of occupying a substantial portion of American policymaking terrain. To evaluate this premise, however, we must examine critically the actual business of the courts and compare it to the business of the country and its citizens. One component of this examination, and my focus here, is the narrower question of what the Supreme Court does and how its agenda relates to the agenda of government as a whole. Implicit in the typical charge of government by judiciary is the belief that much of the task of governance and policymaking has been, is now, or might in the future be commandeered by an unelected federal judiciary, in particular the Supreme Court. And although concerns about government by judiciary need not be restricted to or focused on the Supreme Court, in practice the Court is the most frequent object of worries about judicial activism, with their accompanying calls for judicial restraint, judicial modesty, judicial minimalism, and judicial deference to the decisions of legislatures and administrative agencies. Yet the extent to which this anxiety about judicial aggressiveness rests on a sound factual foundation has seldom been investigated, in part because the existing debates tend to focus on a small number of admittedly important substantive issues – abortion, same-sex marriage, affirmative action, the right to die, and the role of religion in public institutions, for example – and neglect to consider just what proportion of governance in the aggregate is actually at risk of being controlled by the judiciary in general or the Supreme Court in particular.

My goal in this Foreword is to examine the relationship between the Supreme Court’s activities and the totality of the nation’s governance. The October 2005 Term provides the initial platform for this examination, and I devote some attention to the Court’s most recent decisions. Mostly, however, I examine the Court’s agenda. And although I look at the issues the Court took on, I look even more closely at what it did not take on, whether (rarely) because the Court denied certiorari in cases presented to it for decision, or (far more commonly) because the noteworthy absences from the Supreme Court’s agenda are equally noteworthy absences from the American judicial agenda in its entirety, even though they are generally not absences from the American governmental or policy agenda. For in a year in which the war in Iraq, terrorism, escalating fuel prices, healthcare, immigration reform, Social Security, the nuclear capability of Iran and North Korea, Hurricane Katrina, the estate tax, corporate scandals, CEO salaries, bird flu, and the minimum wage appeared to dominate the nation’s public agenda and the workload of the nation’s policymakers, only with respect to terrorism and related issues of homeland security – and then only as to one aspect of those – was there much overlap between the agenda of the nation’s governance and the agenda of the Supreme Court. And even more striking is that, with few exceptions – one of which is the New Deal era but one of which is not the era of Warren Court activism – things have rarely been otherwise.