Frankfurter’S Excogitation Of Judicial Legitimacy – In Addition To Ours

Or Bassok

In a recent post, Neil Siegel describes a “major line of piece of work concern expressed during the partisan gerrymandering litigation earlier the Supreme Court over the past times ii terms”— “that the Court’s populace legitimacy may endure if it holds that federal courts may adjudicate the merits of political gerrymandering claims.” Siegel identifies this line of piece of work concern alongside “Justice Frankfurter’s dire predictions well-nigh the consequences for the Court’s legitimacy of subjecting malapportioned legislatures to judicial review,” too inwards particular, Justice Frankfurter’s dissenting sentiment inwards Baker v. Carr.

This reading of Frankfurter is anachronistic. It imposes a contemporary agreement of judicial legitimacy on Frankfurter that he did non share. And the divergence betwixt Frankfurter’s agreement of judicial legitimacy inwards the early on 1960s too our contemporary take in is quite important.

In monastic tell to explicate this difference, I runway the revisions Frankfurter made to a pivotal judgement (which Siegel quotes) inwards the diverse drafts of his dissenting sentiment inwards Baker v. Carr. Frankfurter wrote his dissent exactly every bit ideas well-nigh judicial legitimacy had begun to shift inwards the early on 1960s. This shift inwards conceptions of judicial legitimacy has had a profound touching on how people cry back well-nigh the Supreme Court too its authority. At the terminate of this post, I briefly utter over to a greater extent than or less of the consequences of this of import development.

Like many discussions of the Supreme Court’s legitimacy inwards recent decades, Siegel’s declaration thinks of judicial legitimacy inwards damage of public support. He treats judicial legitimacy too populace legitimacy for the Supreme Court every bit to a greater extent than or less interchangeable terms. Yet this equation is a recent development; it arose afterward the excogitation of populace sentiment polling that could reliably stair out populace back upward for the Supreme Court. Before the excogitation of this measuring tool, at that topographic point was no independent source of evidence, considered reliable past times all relevant players, of populace back upward for the Supreme Court. As a result, judicial legitimacy could non withdraw hold been understood inwards damage of populace support, at to the lowest degree every bit nosotros cry back of it today.

Before the excogitation of populace sentiment polling in the 1930s, the exclusively tool considered reliable for measuring populace back upward was elections. That is non to say that at that topographic point were no impressionistic assessments of what the populace thought of the Supreme Court. Yet, inwards the absence of populace sentiment polls, the equation so commonly made today betwixt threats to judicial legitimacy too the reject of populace back upward for the Supreme Court inwards sentiment polls simply didn’t exist. The conceptual motion from “judicial legitimacy” to “public legitimacy” to “public back upward for the Supreme Court inwards populace sentiment polls” was non yet possible. In whatever conflict betwixt the Supreme Court too the elected branches, the President too Congress would rely upon their populace support, based on the most recent elections. Except for odd circumstances, when the Supreme Court itself was at the essence of election campaigns, at that topographic point was no way for the Supreme Court to know, based on a publicly accepted tool of measurement, that it also enjoyed populace support.

The entrance of populace sentiment polls every bit a reliable metric too — starting inwards the 1960s — the regular measuring of the confidence of the populace inwards the Supreme Court made populace sentiment polling an independent criterion of judicial legitimacy. The monopoly of elected institutions on the claim to legitimacy based on populace back upward was broken. For the firstly fourth dimension inwards history, it was right away possible to take in the Supreme Courts’s legitimacy inwards damage of populace support.

In back upward of his declaration well-nigh Frankfurter’s agreement of judicial legitimacy, Siegel quotes the next judgement from Frankfurter’s dissenting sentiment inwards Baker v. Carr: “[t]he Court’s ascendency — possessed of neither the traveling pocket nor the sword — ultimately rests on sustained populace confidence inwards its moral sanction.”  But Frankfurter had a real dissimilar thought than the i Siegel attributes to him – every bit did the other Justices who invoked the concept of “public confidence” inwards the judiciary earlier the 1960s.

In a recent article, I give away that Justice Frankfurter’s drafts of his dissenting sentiment inwards Baker v. Carr demo that he changed this judgement twice. The firstly version of this judgement appears inwards a Jan 1962 draft too states that “[t]he Court’s power ultimately rests inwards sustained populace deference to its moral authority.” In a draft dated Feb 1962, this judgement was changed again. The minute version reads: “[t]he Court’s power — possessed neither of the traveling pocket nor the sword — ultimately rests on sustained populace acknowledgment of its moral authority.” Eventually this linguistic communication changes to “ultimately rests on sustained populace confidence inwards its moral sanction.” (Frankfurter was a unopen friend of Walter Lippmann, who famously wrote on populace sentiment too who was good aware of the influence of the excogitation of populace sentiment polling.)

In this continually revised sentence, Frankfurter is paraphrasing Alexander Hamilton’s famous dictum from the Federalist No. 78. But Hamilton did non write that, without the traveling pocket or the sword, the judiciary exactly has populace confidence. Hamilton said that what the judiciary had was “merely judgment.”

Like most of his generation, Hamilton understood judicial legitimacy every bit emanating from expertise. This belief inwards legal expertise is good reflected inwards the Federalist No. 81 where Hamilton writes well-nigh judges as “men selected for their cognition of the laws, acquired past times long too laborious study.” In this institutional design, expertise was opposed to populace approval: The founders designed the Supreme Court to counter shifts inwards pop sentiment that contradicted the Constitution. In this spirit, Hamilton wrote inwards the Federalist No. 78 that “the independence of the judges may survive an essential safeguard against the effects of occasional sick humors inwards the society.” Expert cognition was envisioned every bit the tool that would enable judges to guard the Constitution from populace opinion.

All this has changed inwards our world. In recent decades scholars sympathize judicial legitimacy real differently. Take, for example, the closing lines of Pamela Karlan 2011 Harvard Foreword titled Democracy too Disdain:

“Alexander Hamilton was slightly off base of operations when he wrote that the judiciary has ‘neither Force nor volition but exactly judgment; too must ultimately depend upon the aid of the executive arm fifty-fifty for the efficacy of its judgments.’ The judiciary must ultimately depend on the people.”

Hamilton was non “slightly off base.” He simply viewed the Supreme Court’s source of legitimacy differently than Karlan. It is non surprising that a contemporary scholar similar Karlan views every bit virtually a truism that the Supreme Court must withdraw hold populace back upward to business office properly, too so suggests that Hamilton got it (“slightly”) wrong. The link betwixt populace back upward for the Supreme Court too its might to business office properly has go so powerful inwards American constitutional discourse that it has go mutual sense. According to this picture, the political branches enforce the Supreme Court’s decisions non every bit a final result of its expertise — every bit if they were the patient doing every bit the Dr. ordered — but because of populace back upward for the Supreme Court.

In my article I runway the alter inwards how Hamilton’s dictum has been paraphrased past times the Supreme Court next the excogitation of populace sentiment polls. Justice Frankfurter no doubtfulness contributed to this alter inwards Baker v. Carr, but Frankfurter never believed that the Supreme Court’s legitimacy relied on populace back upward too he would never withdraw hold equated legitimacy alongside populace support, much less populace sentiment polls. In his dissent inwards West Virginia State Bd. of Educ. v. Barnette (1943) Frankfurter emphasized that “[t]he Court has no ground for beingness if it exactly reflects the pressures of the day” too inwards Dennis v. U.S. (1951) Frankfurter stressed that “[c]ourts are non representative bodies. They are non designed to survive a goodness reflex of a democratic society.”

Given the revisions that Frankfurter made to the judgement that Siegel quoted from Baker v. Carr, it seems that Frankfurter was trying to utilization the notion of “moral sanction” to foursquare the circle: He sought to unite his progressive belief inwards the might of experts to Pb lodge based on their practiced cognition alongside his belief inwards democracy. For Frankfurter, “public confidence” rests on a normative (“moral”) standard, rather than exactly on raw populace sentiment that may respond to populist whims. In this spirit, legal historian Brad Snyder speaks of “Frankfurter’s Jeffersonian organized faith inwards enlightened populace opinion.” Frankfurter invokes non the aggregated sentiment of the actual public, but rather a normative criterion connected to an (imagined) enlightened public’s views. Frankfurter tried to do a normative criterion for assessing the Supreme Court’s legitimacy that would non survive dependent on populace sentiment  but would notwithstanding hold a connexion to the populace through the thought that the public, i time enlightened past times practiced knowledge, would follow the Supreme Court’s lead.

The same misunderstanding of Frankfurter has also been visited on his famous clerk Alexander Bickel. Under the piece of equating legitimacy alongside populace support, political scientists withdraw hold repeatedly argued that Bickel’s countermajoritarian difficulty is spurious. After all, political scientists withdraw hold repeatedly shown that the Supreme Court’s decisions don’t truly counter populace sentiment every bit it is reflected inwards sentiment polls.

Yet, at that topographic point is a serious occupation alongside this argument: Bickel simply did non sympathize the countermajoritarian occupation every bit a occupation of courts bucking populace sentiment every bit measured inwards populace sentiment polls. This contemporary way of thinking was beyond Bickel’s horizons. In his bulk The Least Dangerous Branch he writes “[m]ost assuredly, no commonwealth operates past times taking continuous olfactory organ counts on the wide make of daily governmental activities.” (p. 17) Measuring populace back upward for the Supreme Court had exclusively begun its ascent when he wrote his famous bulk (published inwards 1962). Like Frankfurter, Bickel was non oblivious to the potential effects of the novel polling technology scientific discipline on the piece of work of the Supreme Court; he noted that “[s]urely the political institutions are to a greater extent than fitted than the Court to detect too limited an existing consensus – so long, at least, every bit the scientific discipline of populace sampling is no farther developed than it is.” (p. 239)

Bickel saw the countermajoritarian difficulty every bit an inherent difficulty faced past times an unaccountable Supreme Court, rather than a difficulty faced past times a judicial establishment that is un-responsive to populace sentiment every bit expressed inwards sentiment polls. While at that topographic point are connections betwixt accountability too responsiveness, every bit long every bit Supreme Court justices are non elected, the exclusively way to bargain alongside their lack of political accountability is to justify the Supreme Courts’s countermajoritarian ascendency inwards other ways. And indeed, generations of scholars who understood Bickel correctly – including John Hart Ely, Ronald Dworkin too Bruce Ackerman (to cite a few) – worked to devise a justification for the Supreme Court’s countermajoritarian authority.

These scholars were non fools who somehow failed to recognize that the Supreme Court follows populace opinion. Similarly, Bickel didn’t exactly somehow immature lady an article written inwards 1957 past times Robert Dahl at Yale’s political scientific discipline department, exclusively a few blocks from Yale Law School. In his famous article, Dahl showed that the Supreme Court responded to the “dominant national alliance.” Many political scientists run into Dahl’s article every bit the showtime of the trunk of question that shows that the Supreme Court decisions on publicly salient issues are usually inwards line alongside the results of populace sentiment polls. Yet, Bickel’s countermajoritarian difficulty was focused on accountability, non responsiveness, too cypher that Dahl showed could solve the occupation that Bickel posed. In addition, Dahl himself did non refer to populace sentiment polls. He used the topographic point of the legislative bulk inwards Congress 4 years or fewer earlier a Supreme Court conclusion every bit a surrogate for bulk will, since “scientific sentiment polls are of relatively recent origin.” (p. 283). Dahl explained that “for the greater component of the Court’s history…there is simply no way to constitute alongside whatever high aeroplane of confidence whether a given choice was or was non supported past times a bulk of adults or fifty-fifty of voters.” (p. 283-84).

This helps us sympathize why Bickel focused on the “passive virtues.” The ground the Supreme Court needed to adopt the passive virtues was non to conserve its populace back upward (as measured past times populace sentiment polls.) Rather, the indicate of the passive virtues is to defend the Supreme Court’s linguistic communication of expertise. In Gerald Gunther’s words, Bickel insisted that the Supreme Court survive 100 pct principled xx pct of the time. Bickel truly feared what Siegel calls judicial statesmanship: judges corrupting the linguistic communication of legal doctrine inwards monastic tell to ensure the Supreme Court’s populace support. Bickel too Frankfurter saw the passive virtues every bit a defense against the Supreme Court corrupting its expertise inwards an essay to curry favour alongside the public. Avoiding the “political ticket” helped ensure that doctrine would non survive corrupted too the Supreme Court’s source of legitimacy – its expertise – would rest intact.

If nosotros sympathize judicial legitimacy inwards damage of populace support, too then the criterion for assessing the Supreme Courts work, at to the lowest degree inwards highly visible cases, shifts from whether decisions are correct from the standpoint of practiced cognition to whether they withdraw hold populace support.

What expertise inwards constitutional constabulary agency may survive (and oftentimes is) disputed, but i regulation remains truthful for whatever acre of expertise: the right answer is determined past times practiced cognition too non past times populace opinion. Expert cognition must survive determined past times the community of experts according to the rules of their discipline.

The concept of populace sentiment may survive complicated (e.g., does elite sentiment matters more?); so also may the concept of practiced cognition (e.g., how do nosotros determine when experts disagree?). Yet inwards areas governed past times expertise (for example, monetary policy gear upward past times the Federal Reserve), whether the populace supports or does non back upward a proposed activity has no bearing on the right answer (although, of course, the scientific measuring too prediction of populace activity is relevant to setting monetary policy).  We do non rely on populace sentiment polls to tell us the best medical treatments or the best way to wing an airplane.

Hannah Arendt foresaw the dangers inwards shifting the source of the Supreme Court’s legitimacy from expertise to populace sentiment polls. Arendt characterized the American Supreme Court every bit “the truthful topographic point of ascendency inwards the American Republic” but unfit to power. This reflects her take in that the Supreme Court’s source of legitimacy is expertise rather than populace support. As I explicate elsewhere, Arendt saw this every bit a vital characteristic of the Supreme Court. If this characteristic changed, the Supreme Court would survive similar the philosopher-king who depends on populace back upward too corrupts his or her expertise. Whenever a philosopher-king tries to curry favor alongside the public, the final result is inevitably a corruption of truthful philosophy. In similar fashion, whenever the Court understands its source of legitimacy to stalk from populace support, its might to engage inwards practiced judgment volition survive corrupted.

Influenza A virus subtype H5N1 real goodness illustration of the occupation is the “broccoli argument” used to attack the Obamacare private mandate: Congress could non impose an private mandate to purchase wellness insurance because this would hateful that Congress could forcefulness people to purchase broccoli. Initially, this declaration was ridiculed past times almost the entire legal community. In damage of legal expertise, it was a non-starter. Mark Rosen too Christopher Schmidt, who wrote a scholarly article describing the evolution of the broccoli argument, noted that “[m]uch of the broccoli hypothetical’s might was inwards its real ridiculousness…so when challengers firstly floated it—at a fourth dimension when few thought the constitutional challenge had much promise inwards the courts—it had a whiff of desperation.” Yet inside a few years this declaration had been adopted past times the bulk of the Supreme Court every bit a limitation on the Commerce Power.

The broccoli declaration did non succeed past times employing the tools of constabulary as a linguistic communication of expertise. Rather, Rosen too Schmidt explicate that the declaration succeeded because it rose inwards popularity. Public back upward encouraged the conservative Justices to adopt the broccoli declaration every bit a legitimate—and powerful—constitutional argument. Once the legitimacy of the Supreme Court is viewed non inwards damage of its adherence to legal doctrine too expertise, but inwards damage of its populace support, this evolution is no longer baffling.

Or Bassok is an Assistant Professor of Constitutional Law at the University of Nottingham. You tin terminate achieve him past times electronic mail at Or.Bassok at nottingham.ac.uk