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Retaining Judicial Authority: a Preliminary Inquiry on the Dominion of Judges

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Retaining Judicial Authority: a Preliminary Inquiry on the Dominion of Judges William & Mary Bill of Rights Journal Volume 12 (2003-2004) Issue 1 Article 4 December 2003 Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges Larry Catá Backer Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the Courts Commons, and the Supreme Court of the United States Commons Repository Citation Larry Catá Backer, Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges, 12 Wm. & Mary Bill Rts. J. 117 (2003), https://scholarship.law.wm.edu/wmborj/vol12/iss1/4 Copyright c 2003 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj RETAINING JUDICIAL AUTHORITY: A PRELIMINARY INQUIRY ON THE DOMINION OF JUDGES Larry Catd Backer* Why do the people and institutionsof democratic states, and in particularthose of the United States, obey judges ? This article examines the foundationsofjudicial authority in the United States. This authority is grounded on principles of dominance derivedfrom the organization of institutionalreligion. The judge in Western states asserts authority on the same basis as the priest - but not the priest as conventionallyunderstood. Rather, the authorityof the judge in modern Western democratic states is better understood when viewed through the analytical lens of priestlyfunction developed in the philosophy of FriedrichNietzsche. Focusing on the United States Supreme Court and the European Court of Justice, this paper examines the manner in which high-courtjudges have successfully internalizedthe characteristicsof Nietzsche's Paul and his priestly caste within the "religion" of Western constitutionalism. Paul wanted the end, consequently he also wanted the means. What he himself did not believe, the idiots among whom he threw his doctrine believed. His need was for power; in Paulthe priest wantedpower once again - he could use only concepts, doctrines, symbols with which one tyrannizes masses andforms herds.' This critique of systems, and especially of systems locating the power of judgment, reward and punishment outside the self, is echoed in the recent constitutional jurisprudence of the United States Supreme Court and the European Court of Justice. This article examines American and European textualism as a mechanism for the reinforcement ofjudicial authority. Judges acquire a monopoly over communication with the "divine" -justice, truth, and norms - as expressed * Professor of Law, Pennsylvania State University, Dickinson School of Law. The author can be reached at lcbl 1 @psu.edu. My thanks to the participants at the March 2001 meeting of the Association for the Study of Law, Culture and the Humanities Conference, University of Texas College of Liberal Arts, and the participants at the September 2001 meeting of the British Critical Legal Conference, University of Kent at Canterbury (England) for their comments and observations. Special thanks to my research assistant, Seema Lal ('03), for her excellent work. Friedrich Nietzsche, The Antichrist, in THE PORTABLE NIETZSCHE 565, 618 (Walter Kaufmann ed. & trans., Penguin Books 1977) (1881-1892) [hereinafter The Antichrist]. WILLIAM & MARY BILL OF RIGHTS JOURNAL [Vol. 12:117 in constitutions, whether or not written. That expression provides the basis for the regulation of sin, which is a deviation from the divine expression only the priest knows. "[T]he priest rules through the invention of sin."2 The constitutional judge rules through the inversion of doctrine. The interpretive doctrines, standards and tests that have grown up around constitutionalism convert norms into a morass of the unknowable, with only the guidance of priests speaking through courts. And so the judge creates mechanics of authority based on self-reinforcing dependence. [N]othing could be more obscure and out of reach of the common man than a law founded on precedent.... A French lawyer is just a man of learning, but an English or an American one is somewhat like the Egyptian priests, being, as they were, the only interpreter of an occult science.' INTRODUCTION The judiciary acquires supreme authority over matters of constitutional interpretation in one of two ways. In many countries, judicial power is conferred by the people, as ultimate sovereigns.4 The European Union, like other emerging supra- national states, follows this model in constituting its European Court of Justice.5 2 Id. at 631. 3 ALEXIS DE TOQUEViLLE, DEMOCRACY IN AMERICA 267 (J.P. Mayer ed., George Lawrence trans., 1969). 4 Judicial power of this sort is usually vested in a specialized "constitutional court." See, e.g., Ran Hirschl, The Political Origins of Judicial Empowerment Through Constitutionalization: Lessons From Four Constitutional Revolutions, 25 LAW & Soc. INQUIRY 91 (2000) (noting how the increase of judicial power in Israel, Canada, New Zealand, and South Africa resulted from constitutional changes authorized by constituents); Walter F. Murphy, Constitutions,Constitutionalism, and Democracy, in CONSTITuTIONALISM AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD (Douglas Greenberg et al. eds., Oxford Univ. Press 1993) (discussing how the people of some Western nations cede their sovereign power to interpret law to constitutional courts); see generally MAURO CAPPELLElTI, JUDICIAL REVIEw iN THE CONTEMPORARY WORLD (1971) (examining the historical relationship between democratic will and judicial review by a judiciary that the democratic will itself legitimizes). The jurisdiction of these courts is usually limited to issues of constitutional interpretation. Many of these courts have no authority over any underlying litigation from which constitutional issues may have arisen. However, these courts often have power to issue binding advisory opinions. See Louis Favoreu, Constitutional Review in Europe, in CONSTrrUTIONALISM AND RIGHTs 38,41 (Louis Henkin & Albert J. Rosenthal eds., Columbia Univ. Press 1990). 5 See, e.g., ANTHONY ARNUIL, THEEUROPEAN UNION AND ITS COURT OFJUSTICE 21-74 (1999); RENAUD DEHOUSSE, THE EUROPEAN COURT OF JUSTICE: THE POLITICS OF JUDICIAL INTEGRATION 16-35 (St. Martin's Press 1998) (noting that the European Court of Justice 20031 RETAINING JuDICIAL AUTHORITY In some nations, like the United States, the judiciary confers this power on itself.6 This self-conferral of authority has produced a slow, episodic, reluctant - but nonetheless general - acquiescence of the other political institutions of government.7 Debates centering on reservations about the legitimacy ofajudicially self-conferred supremacy "in the exposition of the law of the Constitution... as a permanent and indispensable feature of our constitutional system"' continue to this day,9 even within the Supreme Court itself.'° This article will not contribute derives its power by means of treaty); see generally L. NEVILLE BROWN & TOM KENNEDY, THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES (4th ed. 1994) (describing how international treaties give the Court specified powers of judicial review). 6 See Dickerson v. United States, 530 U.S. 428, 437 (2000) (stating that Congress has no constitutional authority to overturn a constitutional interpretation of the Supreme Court through legislation); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is."). ' Marbury and its progeny generated a tremendous amount of formal and theoretical opposition. Perhaps the greatest representative of this oppositionist school was John C. Calhoun. See, e.g., John C. Calhoun, A Discourseon the Constitutionand Government of the UnitedStates, in UNION AND LIBERTY: THEPOLITICALPHILOSOPHY OFJOHN C. CALHOUN 79, 186-87 (Ross M. Lence ed., 1992) (1850). The most extreme forms of rejectionism were discredited with the defeat of the secessionist states in the American Civil War, but prominent members of the federal government continue to echo this old rejectionism. See, e.g., Edwin Meese III, Perspectiveon the Authoritativenessof Supreme Court Decision:The Law of the Constitution, 61 TUL. L. REV. 979, 982-83 (1987) (challenging the notion that constitutional case law carries with it the same authoritative weight as the text of the Constitution. Mr. Meese served as Attorney General of the United States during the administration of Ronald Reagan). 8 Cooper v. Aaron, 358 U.S. 1, 18 (1958). 9 Jack Wade Nowlin nicely summarized this well known history: Of course, the question ofjudicial overreach is scarcely anew issue in American politics. Indeed, the question of the proper judicial role dates back to the founding, as well as to the early Republic and the clashes between Federalists and Anti-Federalists, Hamiltonians and Jeffersonians. The role of the Supreme Court was also controversial during the Jacksonian era, the years leading up to the Civil War, and during Reconstruction. Moreover, democratic reform movements championing the participatory rights of ordinary Americans have made the elite judicial "usurpation" of democratic authority a regular part of our political discourse since the turn of the last century, when the state and federal courts first began to exercise the power of judicial review routinely and aggressively. Jack Wade Nowlin, The JudicialRestraint Amendment: Populist ConstitutionalReform in the Spirit of the Bill of Rights, 78 NOTRE DAME L. REV. 171, 175-76 (2002) (citations omitted). 10 Consider, for example, Justice Scalia's narrow reading of Marbury in Dickerson v. United States,
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