Judicial review is the process by which the Supreme Court strikes down legislation that comes into conflict with the Constitution, or the law of the land. This function is central to liberal democracy, where the rule of law sets limits to democratic rule, and, in so doing, prevents democracy from deteriorating into a tyranny of the majority. It follows that, if judges do their job, they are active. And it is certainly better to have active judges than comatose ones.
So, what is all the fuss about "judicial activism"? It is my contention that the outcry over "judicial activism" is central to the strategy of the neoconservative revolution. The neoconservative hostility toward the Court and its enchantment with populism, or radical democracy, should be regarded with suspicion.
In the past, traditional conservatives did not care much for democracy. They were elitists who believed that human beings are not all equally fit to govern. Only those with privileged status and educational opportunities were fit for political office. As Edmund Burke maintained, the masses are better off if they are ruled by their superiors. But modern conservatives are wildly enthusiastic about democracy, and this is a phenomenon that requires explanation.
In his book, Slouching Towards Gomorrah: Modern Liberalism and American Decline (Harpercollins, 1996), Robert H. Bork complains that judges are actively usurping the power of the people. He depicts the United States as a "democratic nation that is helpless before an antidemocratic, indeed, a despotic, judiciary" (p. 119). According to Bork, "the Supreme Court has usurped the power of the people and their elected representatives" (p. 109). He accuses the Court of being a tyrannical elite whose vision is at odds with that of the people and their congressional representatives. Not only has the Court usurped the power of the people, it has subjected the country to a radical liberal agenda, which accounts for the moral and cultural decay of the nation (p. 119).
Bork is particularly angry about decisions made by the Court when it was headed by Earl Warren, whose liberal interpretations of the law, Bork believes, are at the heart of the moral decay of America. For examples, the decision in Roe v. Wade legalized abortion, the decision in United States v. Virginia made it unconstitutional for a state to sponsor an all-male military college, and the decision in Romer v. Evans made it illegal to discriminate against homosexuals. Bork regards these as examples of promoting moral decay. He is convinced that legalizing abortion will lead to accepting assisted suicide, admitting women to military colleges will destroy the nation’s ability to create "citizen soldiers," and defending the rights of homosexuals will lead to the acceptance of polygamy.
He concludes that the "abuse of judicial power has become intolerable" (p. 110), and he suggests a remedy. He recommends "a constitutional amendment making any federal or state court decision subject to being over-ruled by a majority vote of each house of Congress" (p. 117). This would put an end to the Court’s power—the power of judicial review to strike down laws that the Court deems unconstitutional. (When Bork’s book was published, his suggestion sounded wildly outrageous. But the presidency of George W. Bush has brought Bork’s dream closer to reality. In the Terry Schiavo case of 2005, Congress was urgently convened to vote on a decision of a state court. The case marked a significant departure from America’s political tradition—the departure that Bork recommended in 1996.) In short, Bork recommends undermining the liberal elements of the American system—separation of powers, the rule of law, and the independence of the judiciary.
Bork is not the only neoconservative to champion unbridled democracy. In an essay titled "The New Populism: Not to Worry" (chapter 30 of his book, Neoconservativism: The Autobiography of an Idea [Free Press, 1995]), Irving Kristol argued that Americans should embrace populism, or the rule of the majority, despite the reservations of the Founding Fathers. And in his dissenting opinions, Justice Antonin Scalia often points to the disparity between the opinions of his liberal colleagues on the Court and the sentiments of the majority of Americans. He prefers the latter. (See his dissenting opinions in Romer v. Evans and United States v. Virginia.)
In my view, the neoconservative enthusiasm for radical democracy has two sources. First, it is rooted in the hope and the gamble that the people are likely to be more conservative than their "parchment regime"—the Declaration of Independence, the Constitution, and the Bill of Rights. And if the last two presidential elections are any indication, this may well be true. Second, neoconservatives are hostile to America’s liberal traditions. They are smart enough to recognize that there is a gulf between democracy and liberty, and that the former can be used to defeat the latter. They are clever enough to grasp the self-refuting nature of democracy.
Conservatives understand that people are vulnerable to manipulation and can easily be made to turn against their own liberties. If the people can be convinced that liberty leads to licentiousness, children out of wedlock, drug addiction, prostitution, and rampant crime, and if they can be convinced that liberty also undermines national security, they will gladly rid themselves of liberty. In short, the neoconservative enthusiasm for democracy has its source in the very real possibility that democracy can be the most powerful instrument in the destruction of the liberal regime.
The fact is that democracy is as compatible with liberalism as it is with conservatism. You can have a liberal democracy or a conservative democracy. The neoconservatives hope to transform America from a liberal to a conservative democracy. And judicial review is an obstacle to this conservative revolution. This is why the first step in the conservative revolution is to emasculate the Court.
What is at issue between liberals and conservatives is the function of law. In a conservative or traditional society, the function of law is to uphold the prevailing morality. In a liberal society, the function of law is to prevent people from harming others, provide equal protection to all under the law, and, to the extent that it is possible, create the conditions of equality of opportunity. It is not the function of law to impose the prevailing morality. The inculcation of virtue (as understood by society) in the private realm is outside the jurisdiction of the law. In other words, the liberal rule of law is compatible with private vice.
So, even if the majority believes that homosexuality is a sin and a personal vice on a par with prostitution and gambling, it is not the function of law to prohibit any of these activities when pursued in private and between consenting adults. Nor should people who are condemned by society for their public vices be deprived of the protection of the law. The insistence of liberal judges in extending the protection of law to homosexuals in Romer v. Evans has nothing to do with their enthusiasm for the homosexual lifestyle (contrary to Bork’s and Scalia’s assumptions). The key reason for extending toleration and legal protection to homosexuals is that they are not harming others. So, Bork and Scalia need not worry that the sympathy of liberal judges will soon turn to polygamists, rapists, and pederasts, since the latter all involve harm to others. Even the Prophet Muhammad admitted that polygamy harms women and convinced his son-in-law to avoid the practice in order not to harm Muhammad’s daughter, Fatima.
Abortion is a more difficult case to defend on liberal grounds, because no one knows if there is a "someone" who is harmed by it. But it is equally difficult to defend laws governing abortion on conservative grounds, because conservatives are nostalgic for traditional societies in which the individual was buffered from the terrifying power of the state by "intermediate institutions" such as the family and the church. In these traditional societies, abortion was in the domain of the family and the church, not the state. This may be a way out of the current impasse, but conservatives do not favor this traditional approach; they insist on inscribing their preferences in the law—just like the liberals they decry.
Then there is the problem of the beleaguered all-male colleges that are destroyed the moment a woman steps on the premises. Bork writes like a schoolboy who is terrified by the imaginary but deadly vermin called "cooties"—a plague transmitted by the slightest contact with the opposite sex. In truth, the ruling in United States v. Virginia does not prevent the creation of private male-only or female-only military colleges. It merely insists that a liberal state should not fund exclusionary institutions of learning but should affirm the liberal principle of equality of opportunity, according to which, careers must be open to all talents—especially where publicly funded institutions are concerned. So, if a military college such as the Virginia Military Institute is willing to forgo public funding, it can continue its all-male policy. Otherwise, it must admit all those who qualify, regardless of sex.
In conclusion, the neoconservative enthusiasm for radical democracy is part of a populist ploy intended to undermine American liberal democracy. Emasculating the Court, as suggested by Robert Bork, might be too difficult. George Bush has a better solution—stack the Court with conservative judges who are sure to undermine the letter of the law in favor of the prevailing social morality and its prejudices.
Shadia B. Drury is Canada Research Chair in Social Justice at the University of Regina in Canada. Her most recent books are Terror and Civilization and The Political Ideas of Leo Strauss, Updated Edition, both with Palgrave Macmillan.
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