Chiarulli Pacelle Review - final

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Pacelle, R. 2001. The Role of the Supreme Court in American Politics: The Least Dangerous Branch? Westview Press. Reviewed by Lauren Chiarulli Abstract: Pacelle seeks to determine the proper role of the Supreme Court in United States politics. Although most consider judges impartial arbiters of the Constitution and other laws, the justices of the Supreme Court have followed their personal political ideologies since the 1920s. Judicial activism by an unelected body, Pacelle argues, thwarting precedents or legislation, could lead to a legitimacy crisis if the court pushes too far against public opinion, even if old precedents must be overturned (e.g. segregation, gender discrimination). Ultimately, Pacelle believes that the court should exercise judicial restraint in all areas except civil and minority rights, a moderate “preferred position” (Pacelle, 2001, Ch.2). The book is a good theoretical introduction to the issues surrounding the court’s powers; however, it suffers from when it was written, immediately before George W. Bush’s inauguration. Key Concepts: ● Judicial restraint is a theory in which the court should make very narrow decisions and not make public policy, but rather apply precedents and defer to the legislative and executive branches. This theory limits the court’s power. ● Judicial activism is a theory in which the court is willing to make public policy decisions. This theory gives the court expansive powers to ignore precedents and the legislative and executive branches of the government. ● Legitimacy is the ability of a governmental body to make binding decisions. Essentially, the people see those decisions as having authority and their approval.

Introduction Richard Pacelle wrote The Role of the Supreme Court in American Politics: The Least Dangerous Branch? in late 2000 and early 2001, and as a result the book prescribes advice at a liminal time for the Supreme Court. The originalists on the court claimed they would stick to judicial restraint based on the intent of the founders, while judicial activism was much maligned. However, the Rehnquist court also pre-empted the Florida state supreme court to declare George W. Bush the winner of the contested 2000 presidential election, with the justices divided along ideological lines. Pacelle obviously had no way of knowing the world events and ideological activism among the justices that would follow. In 2001 Pacelle was (and remains) concerned with the legitimacy of the Supreme Court: its ability to make binding decisions. He believes that judicial activism is only warranted in the protection of minority rights, namely civil rights of racial minorities and women. For example, he agrees with the Brown v. Board of Education decision’s overturning of the Plessy v. Ferguson case. However, he recognizes that the courts do make policy, but believes that the Supreme Court should overall exercise judicial restraint. I recognize that my political leanings and 20 years of watching world events unfolding put me at odds with Pacelle in 2001. There is little that a divided Congress, or at times a right- controlled Congress, will do that I agree with. Up until the death of Ruth Bader Ginsberg and the Dobbs decision, it felt like the Supreme Court’s precedents might hold and the court’s more progressive decisions might be final. Currently, I am somewhat convinced by judicial restraint, but I am looking beyond the federal government for solutions.

Book summary Pacelle asks the question: what should the role of the Supreme Court be in the United States government? (Pacelle, 2001). Even though he recognizes that most justices since the 1920s (when the court was allowed to choose which cases it would hear, rather than all cases that applied correctly (Pacelle, 2001, Ch. 4)) frequently make policy along their ideological beliefs (Pacelle, 2001), Pacelle argues that justices should abide by judicial restraint in all but the most pressing civil rights cases to protect the minorities (Pacelle, 2001). Judicial restraint is the theory that the justices of the Supreme Court should follow precedent, laws, and the Constitution without expanding or contracting the rights and ideas in them when making decisions (Pacelle, 2001). It was a very popular theory among conservatives and centrists when Pacelle wrote the book. Indeed, the author often presents it as a given that judicial restraint should be the dominant legal theory (Pacelle, 2001). Nevertheless, Pacelle has an expansive view of judicial restraint, divergent from originalism. He sees the Planned Parenthood v. Casey decision, upholding the right to abortion but limiting Roe v. Wade , as judicial restraint since Casey upholds the precedent of Roe (Pacelle 2001). Thus, the author believes that once a right is established, the precedent should stand. Pacelle generally argues against judicial activism, the theory that the court should exercise an expansive role in public policy making; however, in the final chapter of the book, he holds that judicial activism may be needed to protect minority rights, clearly primarily thinking of the Civil Rights Movement and the Warren Court (Pacelle, 2001). Judicial activism includes expanding or contracting a law, ignoring precedents, or creating rights not explicitly in the

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Constitution (Pacelle, 2001). Two notable examples of judicial activism are Griswold v. Connecticut and Roe v. Wade . Griswold establishes a right to privacy for married couples to have contraception while Roe creates a federal right to an abortion. Neither right is explicitly in the Constitution, but the Warren and Burger courts used the penumbra doctrine to imply a right to privacy (Pacelle, 2001). Pacelle does not express an opinion about these rulings; however, as noted above, he feels that Casey demonstrates judicial restraint because it defers to precedent. Pacelle’s argument for judicial restraint centers on the legitimacy of the Supreme Court. Legitimacy in this case refers to the government’s ability to make decisions that the people respect and abide by (Pacelle, 2001). The concern is that judicial activism will lead to a legitimacy crisis in the Supreme Court (2001). If the court undermines its own authority, people and civil servants and elected officials could disobey rulings, or the executive and legislative branches could serve as a check on their power (Pacelle, 2001). This is a valid concern, especially considering the New Deal Supreme Court. President Roosevelt threatened to push through court packing legislation since the court struck down significant parts of his New Deal package. Pacelle argues that this was judicial activism on the court’s part, since restraint would follow duly passed legislation that was not inherently unconstitutional (2001). Another reason Pacelle worries about the Supreme Court’s judicial activism is the undemocratic nature of the court (2001). Unlike the legislative and executive branches, the federal judiciary is unelected. Justices are instead appointed by the president (who is not directly elected by the people) and confirmed by the Senate. Justices further have lifetime appointments and are thus protected from public opinion (Pacelle, 2001). Nevertheless, Pacelle

sees some benefits of this shield from the will of the people, since he believes that judicial activism should protect minority rights (Pacelle, 2001). For example, even though Brown v. Board of Education overturns “separate but equal” (and we all know very unequal) Plessy v. Ferguson through judicial activism, Pacelle recognizes that this was an important and valid if potentially undemocratic step (2001). His view is that some undemocratic measures should uphold the rights of minorities in a democracy, rather than the court strictly following judicial restraint (Pacelle, 2001). Pacelle’s concern with the legitimacy and authority of the Supreme Court leads him to argue for judicial restraint over activism. The important exception is minority rights. The federal judiciary, including the Supreme Court, is an undemocratic force in the United States government since the justices are unelected and have lifetime appointments. The book, however, was written, or at least finished, in the liminal time between the Supreme Court’s pivotal Bush v. Gore decision and the beginning of George W. Bush’s administration. This is not a weakness, but the resulting 20+ years of history complicate Pacelle’s assessment. Assessment Pacelle’s book is an excellent defense of judicial restraint, based on theory and using historical examples to augment the theoretical underpinnings. The Role of the Supreme Court in American Politics , however, is a book very much grounded in the time it was written. While Pacelle could not predict the future, its unlucky publishing seemingly between the Court ruling on Bush v. Gore and Bush’s inauguration limits the book’s applicability to current political

debates. Moreover, while Pacelle’s views on a restrained court have not changed, his concerns about the court’s legitimacy have adapted. Pacelle believes in democratic processes, and has expertise in a limited judiciary which defers to the elected branches (2001). Since the federal judiciary is unelected, Pacelle believes it is undemocratic for the Supreme Court to make public policy whole cloth, except to protect minority rights from tyranny of the majority (Pacelle, 2001). Personally, I think Pacelle could have expanded on the justification for protecting minority rights, perhaps by invoking the First and Fourteenth Amendments. Nevertheless, Pacelle’s preference of judicial restraint fits well with our textbook’s argument that the American government was designed for slow, usually incremental change through the legislature (Birkland, 2020). Birkland credits “policy restraint” (from and through our separation of powers and bicameral legislature) for the United States’ political stability (2020, p.91). The implication is that this restraint across the branches of government has maintained the government’s legitimacy in the eyes of its citizens. However, this stability, legitimacy, and restraint have not truly endured. Pacelle is very concerned with Congress’ abdication of its duties and the Supreme Court’s filling that policymaking void. And it seems like the elected branches are not meeting the moment. In the 50 years before the Dobbs decision, Congress and the president had opportunities to pass abortion rights or reproductive justice legislation in case Roe was overturned. This was even one of Obama’s campaign promises in 2008, but never happened despite Democrats holding both houses in Congress. As a result, the executive has acted alone and the judiciary has stepped in to fill the legislative void.

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I was somewhat convinced by Pacelle’s argument for judicial restraint, but this could be for two reasons: 1) his arguments about the legitimacy of the court and the generally conservative nature of the population are convincing; or 2) the current political climate makes judicial restraint favorable for progressives. I emailed Dr. Pacelle to ask him about what he thinks about the years following this book and he emailed me a chapter from a forthcoming book about the Supreme Court. Although he had been worried about minority rights, he had expected the Rehnquist and the Roberts courts to rule with more judicial restraint (Pacelle, 2024?). Today, he recognizes that conservative arguments about originalism and Roberts’ “balls and strikes” comment were not necessarily about judicial restraint, whereas in 2001 he did not analyze Scalia’s argument that overruling activist precedent was originalist restraint (Pacelle, 2001; Roberts, 2005; Pacelle, 2024). Pacelle is careful in 2001 and today to note that judicial activism is not solely the purview of one faction, neither right nor left (no matter the spin of conservatives in the late 20 th and early 21 st centuries). As noted above, much of Roosevelt’s New Deal legislation was stymied by an activist, conservative court (Pacelle, 2001), while Hall chronicles the recent history of the current Fifth Circuit Court of Appeals (2022). The most recent appointees to the Fifth Circuit are clear partisans who have worked in gubernatorial and presidential administrations or think tanks (Hall 2022). For them there is no claim to restraint, and they do not feel bound to precedent. When Texas’ SB 8, the six-week abortion ban allowing anyone who helps someone obtain an abortion to be sued, came before the court, both the appellate and Supreme courts allowed the law to stand, against Supreme Court precedent (Hall, 2022). Reproductive rights were later struck down by the conservative justices of the Supreme Court.

Pacelle recognizes in his 2001 book that all justices today are appointed according to an ideological litmus test, even if they claim in their hearings that they are there to uphold precedent. Trump famously wooed conservatives and Evangelicals by promising to appoint justices from the very conservative and powerful Federalist Society, which was unprecedented (Hall, 2022). Pacelle notes that most Supreme Court justices write opinions and vote along ideological lines, though not necessarily according to the political leanings of the president who appointed them (2001). Pacelle frames The Role of the Supreme Court with the facially ideological Bush v. Gore decision and the general controversy of the 2000 presidential election. He even lets some of his own opinion through in laying out in the second paragraph how much George W. Bush had going in his favor: from his father being the former president and CIA director, to his brother being the then governor of the contested state, and even the Secretary of State overseeing the election in Florida served in Bush’s campaign (Pacelle, 2001, Introduction). Stopping the counting of votes was clearly political to observers at the time. The Rehnquist and subsequent Roberts courts, while they have notably expanded LGBTQ rights, have also not adopted Pacelle’s “preferred position” doctrine in other civil rights. For example, in an activist position, Roberts did not defer to Congress when the court struck down parts of the Voting Rights Act in cases, notably Shelby County v. Holder . These rulings have allowed voting rights, especially for Black voters, to be restricted across the country. Pacelle worries that the Supreme Court would lose its legitimacy by adopting this conservative activist position; however, up to the Dobbs decision, he feels the court has maintained its authority despite the activism (Pacelle, 2024).

The Dobbs decision overturning abortion rights and Roe may prove different because of public opinion (Pacelle, 2024). Dobbs is very unpopular (Pacelle, 2024); moreover, the public does not approve of the Supreme Court (Dole, 2023). However, as an undemocratic, unelected position, justices with their lifetime appointments are shielded from public opinion (Pacelle, 2001). This “imperial” judiciary (Pacelle, 2001, Ch. 1) hearkens to Etzioni’s claims of an increasingly plutocratic United States (2004). When elected officials increasingly only listen to their large donors, when corporations are considered people with free speech rights to donate unlimited amounts to PACs, when unelected judges make too many unpopular policies, when presidents who lose the popular vote (both Bush and Trump) only appoint Federalist society justices, how democratic is the United States (Etzioni 2004; Hall, 2022)? Since Pacelle is worried about maintaining the legitimacy of the Supreme Court through judicial restraint (2001 and 2024), he thinks the current court is too activist but has nonetheless kept its authority. However, we have seen neither the full ramifications of a post- Dobbs world nor the full extent of the court’s new 6-3 conservative majority. Public opinion seems to be turning against the court with the combination of Dobbs and Justice Thomas’ ethics and transparency scandal (Cole, 2023). Contrary to Etzioni’s lament in 2004, many people in this country (from 2017 on at least) seem to care about the United States’ slide into plutocracy and reactionary populism. However, I am increasingly convinced that the federal level is too insulated from public opinion because of the founders’ safeguards against direct democracy. I will continue to vote, but I am looking to do the work of democracy at the state and local level, especially since many rights may be on the chopping block at the national level.

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References Birkland, Thomas. 2020. An Introduction to the Policy Process: Theories, concepts, and models of public policy making. 5 th Edition. Routledge. Cole, Devan. 2023. Supreme Court approval rating decline amid controversy over ethics and transparency. CNN. https://www.cnn.com/2023/05/24/politics/supreme-court-approval-rating- poll-ethics-marquette/index.html Etzioni, A. 2004. The American slippage toward plutocracy. Phi Kappa Phi Forum, 84(1): 26-29. Hall, Michael. 2022. The Rogue Court that Paved the Way for Roe’s Demise. Texas Monthly, September 2022: 120- 123, 192-197. https://www.texasmonthly.com/news-politics/fifth- circuit-court-appeals-roe-wade-scotus-supremeabortion-rights/ Pacelle, R. 2001. The Role of the Supreme Court in American Politics: The Least Dangerous Branch? Westview Press. Pacelle. Richard. Forthcoming 2024. The Complementary Use of Judicial Activism and Restraint in the United States Supreme Court. Roberts, John. 2005. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States,” Hearings before the Committee on the Judiciary, United States Senate, 109th Congress, U.S. Government Printing Office, 2005, pp 55-56 . https://www.uscourts.gov/educational-resources/educational-activities/chief-justice-roberts- statement-nomination-process

Chiarulli Pacelle Review - final

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