• 03 May 2009

The Modernizing Mission of Judicial Review

David A. Strauss - The University of Chicago Law School

Posted in ,

Constitutional interpretation looks to the past: to an old text, to old precedents, to the views of the founding generations, to tradition. That is the conventional wisdom, at least. Judicial review, as it’s usually conceived, is a matter of using principles rooted in these sources to limit current popular majorities. But over the last generation or so, a very different form of judicial review has quietly emerged—an approach that, more or less consciously, looks to the future, not the past; that tries to bring laws up to date, rather than deferring to tradition; and that anticipates and accommodates, rather than limits, popular opinion.

This approach, which might be called modernization, has not been fully avowed by the Supreme Court, and it does not characterize every area of constitutional law. But it is the dominant approach in many important areas. Modernization is an especially useful way of understanding the Supreme Court’s substantive due process decisions of the last half-century—decisions concerning reproductive freedom and intimate relationships—and of seeing why those decisions are, contrary to widespread belief, fundamentally different from the substantive due process decisions of the early twentieth century. Modernization is also central to the interpretation of the Eighth Amendment’s prohibition on cruel and unusual punishment and to the decisions, interpreting the Equal Protection Clause, that impose limits on gender discrimination. In many other areas—other aspects of the Equal Protection Clause, the Commerce Clause, the religion clauses, constitutional criminal procedure—modernization is an important part of the story.

Modernization has two components. The first is that the courts will strike down a statute if they believe it no longer reflects popular opinion or if the trends in popular opinion are running against it. Modernization tries to anticipate developments in the law, invalidating laws that would not be enacted today or that will soon lose popular support. Second, as an important corollary, a modernizing court must be prepared to change course—and uphold a statute that the court previously struck down—if it becomes apparent that popular sentiment has moved in a different direction from what the court anticipated.

Modernization is, I believe, an instinctive, defensive response by the courts to the persistent criticism that judicial review cannot be reconciled with the core principles of democratic government. Whether modernization is a good development, all things considered, is uncertain; I have my doubts. But whatever its faults, there is reason to believe that the modernizing approach to judicial review is, today, central to constitutional law.

Modernization in Action

A.     Cruel and Unusual Punishment

The most overt adoption of the modernization approach has occurred in cases interpreting the Cruel and Unusual Punishment Clause of the Eighth Amendment. In a series of decisions over the last twenty years concerning the constitutionality of the death penalty, the Supreme Court has considered the critical question to be whether the challenged form of punishment was losing support in public opinion. The Court has considered, for example, whether the states that allowed the death penalty in certain circumstances were outliers; whether that form of punishment had fallen into disuse in practice; and whether the trend was to disapprove of it.1

The other component of modernization—the willingness to back down if the political process pushes back—is implicit in these opinions, and it was dramatically illustrated in an earlier Eighth Amendment episode. In 1972, in Furman v Georgia,2 the Court declared that capital punishment, as then practiced in the United States, was administered so arbitrarily and unpredictably that it was “cruel and unusual” and therefore unconstitutional.3 At the time, the Court had reason to believe that popular support for capital punishment in the United States was diminishing; that view was reflected in the Furman opinions and, even more explicitly, in the private papers of some of the justices.4 Capital punishment, the Court suggested, had so little support that its imposition was basically a matter of happenstance.5

Within four years, thirty-five states had reenacted death penalty statutes drafted specifically to address the concern about excessive discretion and arbitrariness.6 In 1976, the Court upheld some of these statutes, effectively reinstating capital punishment in the United States.7 The Court’s treatment of capital punishment—its emphasis on trends in the law, coupled with a willingness to retreat—illustrates both aspects of the modernization paradigm.

B.     Sex Discrimination and the Equal Protection Clause

Modernization has also—less obviously—become the governing approach to laws that discriminate on the basis of sex. The black-letter standard for judging sex classifications under the Equal Protection Clause requires that such a classification be “substantially related” to “important governmental objectives.”8 But sex classifications are sometimes unconstitutional even if they do seem to have a substantial relationship to an important objective. The Supreme Court has, for example, twice invalidated statutes that presumed that widows, but not widowers, were dependent on the earnings of their deceased spouses.9 But that presumption was statistically correct, and the classification does have a substantial relationship to an important objective—the objective of protecting dependent surviving spouses without either incurring large administrative costs or spending money on spouses who are not dependent.

The more plausible reason for the unconstitutionality of these sex-based classifications is suggested by some of the other things that the Court has said—that the statutes rest on generalizations that, while they may be statistically true, embody “archaic,” “traditional,” or “stereotyped” views about men’s and women’s roles, or “old notions” that are inconsistent with “contemporary reality.”10 These terms reveal that what’s actually going on is modernization. The problem with the sex-based classifications that the Court struck down was not that they failed to promote important objectives; the problem was that those classifications were the product of a bygone era and were no longer in keeping with current views—”contemporary reality”—about sex roles. By the same token, when the Supreme Court has upheld sex classifications, it has sometimes suggested that it was doing so because it had confidence that the classification was the product of a present-day decision.11

In its most important sex discrimination case—United States v Virginia,12 which declared unconstitutional the Virginia Military Institute’s exclusion of women students—the Court emphasized both VMI’s outlier status (there was only one other all-male public college in the country13) and the fact that VMI’s single-sex policy had been adopted at a time when women were routinely considered unfit for many occupations.14 At first glance, that latter point seems to assume a kind of guilt by historical association. The people who thought women were unfit to be lawyers, for example, were wrong; but it does not follow that the people who thought that women could not be accommodated in a certain kind of military training were also wrong. The modernization approach, though, makes sense of the Court’s emphasis on this point. The problem with the exclusion of women from VMI was not that it was based on mistaken factual claims about the effect that the admission of women would have on military education—the courts, in reality, are not well equipped to evaluate those claims—but rather that the decision to exclude women from VMI was made in an era when attitudes were so different from what they are today.15

The Court’s opinion in Virginia also carefully left open the possibility that the Court would allow sex segregation in education in certain circumstances—a rough parallel to what the Court did in the capital punishment cases, where it left the door open for state legislation that addressed the Court’s concerns.16 The Court’s concern in Virginia was not with the justifiability of sex-segregated education per se, but with whether a policy of sex-segregated education was modernized—whether it was the product of current ways of thinking and not a holdover from earlier times.

C.     Substantive Due Process

Modernization is the central unifying theme of the substantive due process cases that have been decided in the last forty years. These cases have concerned subjects—reproductive freedom and intimate relationships—that, like sex roles (and, the Furman Court mistakenly thought, capital punishment), have been the subject of rapidly changing attitudes. When the Court has struck down a law, it has been either an outlier,17 a law that was seldom enforced and unrepresentative of national trends,18 or all of those things.19 On the other side of the coin, when Washington v Glucksberg20 rejected a claim that there is a substantive due process right to physician-assisted suicide, the opinion emphasized all the ways in which the statute forbidding assisted suicide did not need to be modernized: it had recently been reenacted; many states were in the process of reconsidering physician-assisted suicide laws; and nearly every state had reaffirmed its prohibition against physician-assisted suicide.21

Because these decisions referred to current trends in the law, they left open the possibility that the Court might revisit these issues if it had miscalculated and the political process pushed back. Lawrence is especially revealing in this respect. The opinion in Lawrence was, conspicuously, written in an open-ended fashion that allowed the Court to wait and see what the reaction would be. The opinion allows for future expansion of the right that the Court established, to strike down other forms of discrimination against gays, including prohibitions against gay marriage. But the opinion would also allow the Court to confine the holding narrowly to the relatively uncontroversial case of laws forbidding same-sex sodomy.

Should Courts Modernize?

Modernization, like every other approach to constitutional interpretation, is not “value-free.” A judge engaged in modernization will make judgments, not just about whether a law is out of date, but also about whether it ought to be modernized. That is, the question is not just what the trend in the law is, but whether it is a good trend that should be furthered. In the capital punishment cases, the Court has been explicit in saying that it is relying not just on its perception of the direction in which the law is moving but also, in part, on its own judgment about whether the laws are sensible and fair. It is not hard to see similar judgments beneath the surface in the other modernizing cases.

For this reason, among others, it would be a mistake to think that “modernization” is always a good thing; the term is perhaps misleading in that respect. If the trends in the law are bad, judges may be unwilling to resist them; or they may even approve of the bad trends. The Civil Rights Cases22 of 1883, which struck down important post-Civil War civil rights laws, were modernizing decisions: the nation’s interest in protecting the rights of the newly freed ex-slaves was rapidly receding, and the Court ratified that trend.23

The question remains, though, whether modernization is an acceptable institutional role for the courts to play. On this issue, the modernizing approach to judicial review can be criticized on at least two grounds. The first is that it is absurd for unelected judges to do the quintessential work of elected politicians—discerning trends in public opinion. There is something to this criticism, but less than meets the eye. It has long been understood that common law courts shape their holdings in accordance with the trends they perceive in the law. A common law decision, of course, can be overturned by statute; but that difference between common law and constitutional law diminishes when a modernizing court is willing to retreat if it is wrong about popular opinion.

The problems with modernization are more subtle. One problem is that a modernizing decision can be either self-validating or self-nullifying: self-validating if it gives insuperable advantages of inertia and legitimacy to one side of a contested issue; self-nullifying if it precipitates a backlash by making salient an issue that the politicians had successfully obscured.

The more far-reaching question, though, is whether the modernization approach is too tempting and causes the courts to be too willing to sway with the political winds. The two most famous cases of modern times—Brown v Board of Education24 and Roe v Wade,25 both modernizing decisions—illustrate this point. Roe was decided at a time when the trend in the nation was toward liberalizing abortion laws, and the statute invalidated in Roe—which allowed abortions only to save the life of the mother—was relatively restrictive; at the time nearly half the states in the country allowed abortions when necessary to protect the mother’s health, not just her life. Of course, the opinion in Roe swept more broadly, and it did not seem to allow for pushback from the political process. But as the controversy over abortion continued, the Court modified Roe and allowed various other kinds of restrictions on abortions, ultimately establishing a regime that is a plausible political compromise but arguably does not reflect a sufficiently coherent or principled view.

Brown, also, was a modernizing decision in important respects. Popular sentiment against racial segregation had been building for decades, and the justices regarded segregation as an anachronism. The Court’s second Brown decision26—famous for saying that desegregation should be accomplished only “with all deliberate speed”—reflected the sensitivity to political reaction that is characteristic of modernization. Again, the questions are whether the Court was too sensitive, and whether desegregation might have proceeded more smoothly if the Court had not signaled a willingness to slow down when confronted.

The courts will, inevitably, respond to movements in public opinion; that is a staple of the political science literature on the courts, and the appointments process, among other things, makes that result inevitable. But it does not follow that the courts best serve the country when, as the modernization approach prescribes, they make it their mission to anticipate and facilitate—rather than correct—the operations of democracy.dingbat



Copyright © 2009 University of Chicago Law Review.

David A. Strauss is Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School.

  1. See, for example, Kennedy v Louisiana, 128 S Ct 2641, 2646 (2008), where the Court held that the Eighth Amendment forbids capital punishment for the crime of raping a child; Roper v Simmons, 543 US 551, 575 (2005), which held that the Eighth Amendment forbids the execution of individuals who were younger than eighteen when they committed the crime; Atkins v Virginia, 536 US 304, 321 (2002), which held that a state may not execute a mentally retarded person. Stanford v Kentucky, 492 US 361, 370-71 (1989), the case that Roper overruled, examined many of the same data as Roper and reached the opposite conclusion about what Roper, 543 US at 565-66, viewed as an earlier stage in the evolution of the national consensus.
  2. 408 US 238 (1972).
  3. Id at 238-39.
  4. See id at 299 (Brennan concurring); id at 313 (White concurring) (asserting that capital punishment had “for all practical purposes run its course”); Del Dickson, The Supreme Court in Conference (1940-1985): The Private Discussions behind Nearly 300 Supreme Court Decisions 617­-18 (Oxford 2001).
  5. See Furman, 408 US 238, 238-39.
  6. Gregg v Georgia, 428 US 153, 179-80 n 23 (1976).
  7. See, for example, id at 206-07.
  8. Mississippi University for Women v Hogan, 458 US 718, 724 (1982). See also, Nguyen v INS, 533 US 53, 60-61 (2001); United States v Virginia, 518 US 515, 533 (1996).
  9. See Califano v Goldfarb, 430 US 199, 202 (1977); Weinberger v Wiesenfeld, 420 US 636, 639-40 (1975).
  10. See Goldfarb, 430 US at 207; Stanton v Stanton, 421 US 7, 14 (1975); Schlesinger v Ballard, 419 US 498, 508 (1975). See also Weinberger, 420 US at 645; Nguyen, 533 US at 76 (O’Connor dissenting) (“{O}verbroad sex-based generalizations are impermissible even when they enjoy empirical support.”); J.E.B. v T.B., 511 US 127, 139 n 11 (1994); Craig v Boren, 429 US 190, 199 (1976).
  11. See, for example, Califano v Webster, 430 US 313, 320 (1977).
  12. 518 US 515 (1996).
  13. The other was The Citadel in South Carolina. See id at 569 (Scalia dissenting).
  14. Id at 536-38, 542-45.
  15. In fact, Virginia had appointed a commission to reexamine state higher education policy, and VMI itself undertook such a reexamination. But the Court concluded that neither of those reexaminations established a modern, acceptable justification for excluding women from VMI. See id at 538-39.
  16. See, for example, Virginia, 518 US at 534 n 7.
  17. See Moore v City of East Cleveland, 431 US 494 (1977) (plurality) (invalidated an ordinance that had the effect of sometimes preventing grandparents from living in the same home as their grandchildren when the parents did not also live there-apparently the only ordinance of its kind in the country).
  18. See Lawrence v Texas, 539 US 558 (2003) (striking down a Texas statute that made consensual same-sex sodomy a crime).
  19. See Griswold v Connecticut, 381 US 479 (1965) (declared unconstitutional a Connecticut statute that made it unlawful for any person, including married people, to use contraceptives).
  20. 521 US 702 (1997).
  21. Id at 716-17.
  22. 109 US 3 (1883).
  23. I am indebted to Barry Cushman and Michael Klarman for this point. For further discussion, see Michael J. Klarman, Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell, 81 U Va L Rev 1881, 1903-11 (1995).
  24. 347 US 483 (1954).
  25. 410 US 113 (1973).
  26. 349 US 294, 301 (1955).

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