In his obituary of Dworkin, New York Times Supreme Court reporter Adam Liptak noted that Justice Anthony Kennedy is the most Dworkinian of the current crop of justices, the most likely to justify his decision using moralistic language. Kennedy is also the least respected of the bunch. His efforts to provide the moral basis for his votes typically descend into gobbledygook. “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” he warbles in one forgettable opinion on abortion rights. It is in the nature of issues like abortion that reasonable people have differing moral attitudes; democracy exists to enable them to resolve their disagreements in a fair and peaceful way. When judges decide these issues based on their moral beliefs, they deprive people of their right to determine policy through the vote. Judges ought to be more respectful of public attitudes; Dworkin’s method encourages them not to be.
Dworkin, like many liberals, rightly worried that majorities will exploit minorities if judges do not step in. If it were not for the Supreme Court, he once wrote, black children would still attend segregated schools in the South. This was probably inaccurate given the legislative changes that took place in the 1960s. Jim Crow was defeated by political organization that changed public attitudes and ultimately led to federal civil rights statutes, not judicial noblesse oblige. But if we give the Supreme Court credit for its role in the civil rights revolution, we also must remember that a century earlier the Supreme Court had declared that blacks were not citizens in Dred Scott, helping to precipitate the Civil War, and in the 1930s the court absurdly attempted to prevent the federal government from addressing the Great Depression by experimenting with economic regulation. The current conservative majority “fits” constitutional text and judicial precedent to the justices’ ideological distrust of government intervention in the market. That is why the Supreme Court has been able even today to strike down many economic regulations, like regulations designed to prevent firms from confusing consumers and rules that allow buyers of defective goods to win large punitive damages.
Dworkin was horrified by the rulings of the conservative justices, but, while he obviously did not cause them in any direct way, his theory of judging gave philosophical respectability to what psychologists call motivated reasoning. It is tempting for all of us to interpret the world so as to confirm our moral views. Judges given license by Dworkin to interpret the Constitution persuade themselves that their moral beliefs are embodied in that document, and thus disregard the policy choices made by the public’s elected representatives.
In a typical ivory tower conceit, Dworkin responds by arguing that it is essential that nominees to the Supreme Court discuss their “judicial philosophies” with the Senate. The idea is to ensure that Supreme Court review has a democratic pedigree. But no one with any hope of confirmation would ever do such a thing. Because constitutional law is so politicized, nominees must hide their views from the public. Confirmation hearings take place entirely in code. President Bush says that judicial nominees should exercise “strict constructionism,” while President Obama says that they should use “empathy.” Chief Justice John Roberts claimed at his nomination to be an umpire calling balls and strikes, and Justice Sonia Sotomayor said that she would merely “apply the law”—while everyone knows that what is really at stake is whether Roe v. Wade will be overturned or campaign finance reform will be permitted.
The upshot is that rather than resolve gun control, abortion, and campaign finance by voting for politicians who hold our opinions, we vote for politicians who we hope will pick judicial nominees who hold our views, while the potential justices do everything they can to mask their positions.
This is not a good way to run a country. It would be better if judges tried to avoid making constitutional decisions and instead deferred to the national and state governments as much as possible. A few scholars, notably Jeremy Waldron of New York University and Adrian Vermeule of Harvard, have argued for this kind of judicial passivity. Waldron emphasizes the real harm that occurs when judicial review effectively blocks the public from exercising its right to political participation, while Vermeule argues that judges cannot be expected to possess either the moral wisdom or the knowledge of the empirical world that is necessary to bear the interpretive burden that Dworkin assigns to them.
Dworkin liked to imagine that judges should act like Hercules, drawing on superhuman wisdom and patience to bring order to the Augean stables of our law. His critics see the judge as bureaucrat and humble servant of people. Is it any wonder that someone like Anthony Kennedy would find the Dworkinian view more appealing?