Supreme downsizing
A growing group of scholars from both left and right say the nation's highest court is out of control.
Cut back its power, they argue, and the country will be better off.

by CHRISTOPHER SHEA
The Boston Globe, October 7, 2007, page E1

The nine members of the U.S. Supreme Court wield extraordinary power over American society: Last term alone, they struck down school desegregation plans in two cities, rewrote Congress's new rules for campaign-finance reform, and modified the free speech rights of high school students. (Tip: Kids, leave that "Bong Hits 4 Jesus" sign at home.)

Since the court now has two blocs of justices who tend to vote together - in shorthand, the liberal and conservative wings - momentous questions of policy often end up in the laps of a single justice who holds the swing vote.

The court's power explains the political furor that erupts every time there's a vacancy on the bench; its secrecy feeds the public hunger for any scrap of information about the justices' deliberations.

Last week the Supreme Court's new term got underway and the breathless cycle began anew. Recent high-profile books by the lawyer-journalists Jeffrey Toobin ("The Nine") and Jan Crawford Greenburg ("Supreme Conflict") are being devoured by court-watchers. The court is soon expected to decide whether execution by lethal injection is inherently cruel and unusual, and whether Congress or the courts can set the terms for the trials of Guantanamo detainees - both cases with substantial implications for America and the world.

But perhaps the court shouldn't be in such a powerful position at all. Adrian Vermeule, a rising-star professor at Harvard Law School with a deep family legacy in Boston intellectual circles, says this entire conception of the Supreme Court - nine wise and isolated elders fighting over when and whether to overrule Congress - is hopelessly flawed. It promises only perpetual rancor and inconsistency, he argues: the bane of good law. The court, he concludes, should stay out of controversial matters of politics and law almost entirely, deferring - except in painfully obvious cases - to the wisdom of elected representatives in Congress.

Vermeule, hired by Harvard from the University of Chicago last year, is widely considered a conservative, but his work dovetails with that of several leading liberal scholars who have also been challenging the court's power recently.

Vermeule's America would be one without important Supreme Court rulings barring anti-abortion laws and antisodomy statutes. But it would also be a nation in which Congress could tightly regulate campaign spending, cities could devise creative desegregation plans, and state universities could embrace affirmative action.

If both liberals and conservatives coolly weighed the costs and benefits from their own political perspectives, he argues, they would all agree that the court needs to step back from those issues.

"What I'm suggesting is a kind of arms-control agreement, a tacit deal," Vermeule says.

Such a deal may be unlikely to pass anytime soon, but the intellectual debate over the proper role of the Supreme Court is very much alive in the court itself. "Judicial modesty" is a proclaimed ideal of Chief Justice John Roberts, and the outside academic debate will invariably influence that internal court struggle. At the same time, ideas like Vermeule's strike other scholars as the very opposite of what the Founders intended, essentially erasing one of the three branches of government. The defenders of judicial power are hardly shrinking from the field of battle.

Debates about the proper limits of the Supreme Court's power are nearly as old as the Constitution itself. In 1803, Chief Justice John Marshall, in the case Marbury v. Madison, announced that the court had authority to overrule Congress on constitutional questions - the birth of the concept of "judicial review."

Critics of judicial review call it antidemocratic, giving one branch of government nearly total veto power over elected lawmakers. Its proponents counter that it actually enhances democracy, allowing the courts to step in to protect people slighted by the majority-elected Congress. The court also continually draws attention to, and fosters debate on, the higher principles on which the nation was founded - a rarefied counterpart to the horse trading on Capitol Hill.

The court's decisions have given both the left and right much to fume over in every historical period, from the 19th-century Dred Scott case, in which it held that freed slaves could not be citizens, to 1973's Roe v. Wade decision, which triggered a three-decade argument that has yet to end.

Vermeule, who is 39 and has written or cowritten four books, traces his own outlook to James Bradley Thayer, a Harvard law professor of the late 1800s who devised the "rule of clear mistake": Only when Congress had transparently misread the Constitution, he said, should the courts step in.

Although Vermeule rejects the label of conservative, at Harvard he is often viewed as part of a group of new hires - also including Jack Goldsmith, author of the recent book "The Terror Presidency," and John Manning - who have diversified Harvard's left-leaning faculty. "He's a popular topic of conversation," says Oramel Skinner, a first-year Harvard law student. "He's probably the most analytical mind I've seen in the law school. He brings a completely different feel to class, and a completely different feel to cases - and I find that refreshing even when I don't agree with him."

Vermeule boasts a distinguished scholarly lineage, though not in law. His father is Cornelius C. Vermeule, who retired as curator of classical art at the Museum of Fine Arts a decade ago, while his mother, the late Emily Dickinson Townsend Vermeule, was the first woman to be tenured in the classics department at Harvard. (Emily Dickinson, the poet, is a distant relative.) His sister, Blakey Vermeule, teaches English at Stanford. When Adrian told his parents he was going to law school, as opposed to following them into the high humanities, he recalls, "they reacted in horror - as if I wanted to repair refrigerators for a living, as if it were some sort of vocational thing."

In many ways, Vermeule's ideas about the Supreme Court don't fit the existing liberal or conservative critiques of how the court relates to the Constitution. Although he clerked for Justice Antonin Scalia, he is not an "originalist," like Scalia and Justice Clarence Thomas - both of whom complain that liberals "legislate from the bench" but are more than willing to strike down laws that do not conform to what they see as the Founders' notions of what the Constitution meant. Vermeule would have the court defer to Congress nearly full stop.

Nor is Vermeule motivated by the principle that drives left-leaning opponents of Supreme Court power, the undemocratic nature of judicial review. "That's not my issue," he says, viewing it as one of those constitutional questions that can be debated endlessly.

Vermeule's approach, explained most clearly in "Judging Under Uncertainty" (Harvard, 2006), is instead deeply pragmatic and results-oriented, seasoned with a heavy dose of political science and rational-choice theory. The institution of the court, he argues, is simply not set up to handle the immense task it's been handed.

His analysis begins with the observation that the court has always been a collection of justices holding contradictory theories about how the Constitution should be interpreted, and it always will be. Inevitably, the resulting intellectual coalitions will behave erratically over time, creating long-term instability and inconsistency in the law. By now that means that "respecting precedent" - the mantra of both conservatives and liberals - is a philosophical impossibility: Which precedents? Those of the '70s, the '50s, or the '20s are irreconcilably different.

Vermeule calls his approach a theory of the "second best": Partisans on the left or right may wish for the day when the court is made up of nine Thurgood Marshalls, or nine Scalias, but that day will never come, so he offers a second-best alternative.

"My intent is to step back and say to people, You strongly believe in your philosophy, and the other person strongly believes in her philosophy," he says. "Can we arrive at a method of going forward together that will allow us to decide what to do without having a final showdown over whose philosophy is correct?"

The answer, he thinks, is to shift much decision-making over to Congress, or, in the case of highly technical interpretations of specialized laws, to federal agencies, which have the manpower and expertise to handle interpretation better than the court.

We should rely on the court only "as a kind of backstop," Vermeule says. "Legislatures occasionally throw a wild pitch: They obviously violate the constitution. In that kind of case, the court can be useful."

To ask more of it, he says, is to doom ourselves to the unproductive back-and-forth that has long characterized debate over the leanings of the court. Ronald Dworkin, a constitutional theorist at NYU, complains in the Sept. 27 issue of The New York Review of Books that the current "conservative phalanx" has overturned "the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed." Conservatives then retort that the court was simply returning to a sounder vision of the Constitution that predates those precedents. And so on.

One interesting test of Vermeule's theory is what it would make of Brown v. Board of Education, the 1954 ruling against segregation widely seen as the most canonical of all court decisions. (It is nearly axiomatic in the constitutional law field that if your theory concludes Brown was wrongly decided, you'd better get yourself a new theory.) Vermeule concedes that under his theory the court would never have taken the Brown case, but nor would it have taken on cases that led to results liberals hate.

"My response is that we can't think about individual cases," he said. "We have to think about packages of cases.

"The justices invalidated school segregation. But in Dred Scott they declared a constitutional right to own slaves. In another case they invalidated laws banning child labor. In another case they invalidated a law that banned the beating of women" - the Violence Against Women Act of 1994, struck down by the Rehnquist Court.

"We have to think of the costs of allowing judges to invalidate statutes in these kinds of areas," he said. If either the left or right looked at the full picture, they'd agree the costs of giving judges such discretion is unproductive, he thinks.

Cass Sunstein, a prominent legal scholar at the University of Chicago and a liberal advocate of judicial restraint, describes Vermeule as "one of the most influential and widely read young law professors in the country" and says his "influence is growing over time."

Yet other scholars think Vermeule completely misses an important point about the Supreme Court: that it has served for two centuries as a lofty venue for defining American ideals.

"The characteristic feature of Vermeule's work, insofar as it is new, is that it is particularly tone deaf to the fact that the great contribution of the American system is this great ongoing conversation about fundamental principles," says Bruce Ackerman, a constitutional scholar at Yale.

"There's never been a point in American history where we haven't disagreed over constitutional principle," Ackerman adds. "But the answer is not to shut up, or to engage in technocratic cost-benefit analysis."

Nor, Ackerman says, is the line between "clear" constitutional statements and abstract aspiration, on which Vermeule's theory depends, always obvious. Is Congress's power to "declare war" clear or not? Recent history suggests not.

Vermeule responds that it would be progress if the court even just stopped trying to interpret the most obviously vague constitutional provisions.

Though Vermeule has drawn critics from both sides, a handful of liberal scholars have recently added their voices to the call for judicial restraint. Last year Jeremy Waldron, a lawyer-philosopher at NYU, wrote a widely discussed piece for the Yale Law Journal arguing that in mature democracies issues such as abortion and homosexual rights ought to be resolved in legislatures. And Harvard law professor Mark Tushnet has challenged the view that the court has protected the rights of minorities over the course of American history - a key argument for its current role. The University of Virginia's Michael Klarman, focusing on the country's slow desegregation, argues that the court basically follows, or is prodded by, majority opinion and minority social movements - and in this sense is arguably superfluous.

Vermeule's work isn't limited to constitutional theorizing, but contrarianism is a common thread in his writings. He coauthored a public defense of the so-called torture memo produced by the White House's Office of Legal Counsel in 2002, the document arguing Congress could not stop the president from ordering extreme physical interrogations in a time of national emergency. He called it "standard lawyerly fare, routine stuff" - though he insists this is different from endorsing any specific interrogation techniques.

Contrarian in a different way is a paper Vermeule wrote in 2005 arguing that cash payments to black Americans would be a reasonable response to our national history of slavery and discrimination. Again, it's a "second best" argument: People who didn't suffer would get money from people who didn't discriminate. But it would be better than turning a blind eye to the nation's history of racism.

As the Supreme Court rushes ahead once again into a thicket of contentious cases, anger at the results will be inevitable. Most Americans will still pull for "their" justices to prevail, of course. But at some point, as Americans grow weary of judicial wars without end, might Vermeule's second-best solution gain a hearing?

Vermeule concedes that any such change would probably come well into the future. "This is going to sound pessimistic," he says, "but I think that the only way one changes people's view is through generational change. One teaches students who in a different day come to see things differently."